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HX00030074 


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College  of  -pfjpsiictans  anfc  burgeons' 


library 


MEDICAL         v 

0 . 

JUEISPRTJDENCE 

OF 

INSANITY 

OR  FORENSIC  PSYCHIATRY. 


BY  S.  V.  OLEYEJSTGER,  M.  D., 

Attending  Physician  Adexian  Brothers'   Hospital,   Consulting    Physician 
Michael  Reese  Hospital,  Chicago;  Associate  Editor  of  the  Alienist Tnd 
Neurologist.   Formerly  Medical  Superintendent  op  the  Illinois 
Eastern  Hospital  for  the  Insane,  Pathologist  of  the  County 
Insane  Asylum,  Chicago  ;  Professor  of  Anatomy,  Art  In- 
stitute, Chicago  ;  Lecturer  on  Physics,  Chicago 
College  of  Pharmacy;  Author  of  Compar- 
ative Physiology  and  Psychology, 
Spinal  Concussion,  etc. 

With  an  Exhaustive  Presentation  op  the  Judicial 
Decisions  upon  the  Subject. 

BY  F.  H.  BOWLBY, 

Counselor  at  Law,  of  the  Publishers'  Editorial  Staff. 


VOLUME   I. 


1898 

THE  LAWYERS'  CO-OPERATIVE  PUBLISHING  COMPANY 

ROCHESTER,  NEW  YORK. 


Digitized  by  the  Internet  Archive 

in  2010  with  funding  from 

Open  Knowledge  Commons 


http://www.archive.org/details/medicaljurisprud01clev 


TABLE  OF  CONTENTS. 


VOLUME   I. 


CHAPTER  I. 
INTRODUCTION. 

Medical  jurisprudence  of  insanity.     Work  of  Dr.  Isaac  Ray.     Changes 

in  judicial  views.     Specialism  in  medical  j  urisprudence 1-4 

CHAPTER  II. 

DEFINITIONS. 
Difficulties  of  definition.     Definitions  of  insanity.     Legal  definitions  of 
insanity.     Tests  of  insanity.     Delusion  test.     Right  and  wrong  test. 
Rule  that  there  is  no  test... 5-2C 

CHAPTER  III. 

CLASSIFICATION. 

Classifications  of  various  authors.     Medico-legal  working  classification  27-30 

CHAPTER  IV. 

SYMPTOMS. 
Asylum  observations  of  symptoms.  Conduct  of  patients.  Premedita- 
tion. Design.  Business  ability.  Superstitions  concerning  insanity. 
Excitement.  Depression.  Insane  actions.  Disappearances.  Con- 
sciousness. Memory  derangements.  Delusions.  Hallucinations. 
Illusions.  Physical  conditions.  Insane  odor.  Insane  manner. 
Insane  appearance.     Insane  ear.     Menstruation 31-61 

CHAPTER  V. 

DIAGNOSIS. 
Diagnosis  in  general.     Lucid  intervals.     Concealed  insanity.     Feigned 

insanity.     Cases  of  feigned  insanity 62-79 

CHAPTER  VI. 

CRIMINAL  CASES. 
Crime  in  general.  Criminal  anthropology.  Insanity  as  a  defense.  In- 
sanity after  verdict  or  judgment.  Homicidal  insanity.  Sexual 
crimes.  Larceny  or  kleptomania.  Arson.  Forgery.  Assaults. 
False  accusations.  False  confessions.  Malicious  mischief.  Motive 
in  crime.  Instigation  to  crime.  Hypnotism.  Evidence  of  insanity. 
Insane  as  witnesses.  Medical  evidence.  Hypothetical  case.  Re- 
sponsibility.  : 80-123 

v 


V)  TABLE    OF    CONTENTS. 

CHAPTER  VII. 

LEGAL  ADJUDICATIONS  IN  CRIMINAL  CASES. 

I.  General  insanity. ---  125-164 

§  1.  What  insanity  affects  criminal  responsibility.  §  2.  Infant  or 
wild  beast  test.  §  3.  Delusion  test.  §  4.  Abstract  right  and 
wrong  test.  §  5.  Test  of  right  and  wrong  as  to  particular  act. 
§  6.  Test  of  knowledge  of  the  nature  of  the  act.  §  7.  Combina- 
tion of  the  above  tests.  §  8.  Cases  denying  the  existence  of  a  test. 
§  8a.  The  case  of  State  v.  Jones.  §  9.  Time  of  application  of 
tests.     §  10.  Insanity  as  affecting  the  degree  of  crime. 

II.  Partial  insanity . . 164-177 

§  1.  Definitions.  §  2.  Test  of  criminal  responsibility.  §  3.  De- 
lusions— definition  and  nature.  §  4.  Delusions — effect  on  crimi- 
nal responsibility.      §  5.  Moral  insanity  defined.     §6.  The  rule 

that  moral  mania  is  not  a  defense.  §  7.  The  contrary  rule.  §  8. 
Kleptomania.     §  9.  Erotomania. 

III.  Temporary  and  recurrent  insanity 177-178 

IV.  Existence  of  insanity — how  determined  . 178-180 

V.  Proof  necessary  to  establish  insanity.. 180-192 

§  1.  Generally.  §  2.  Previous  and  subsequent  insanity. 
§  3.  Nature  of  the  crime,  g  4.  Motives.  §  5.  Acts  and  conduct. 
§  6.  Personal  characteristics.  §  7.  Exciting  causes  of  insanity. 
§  8.     Hereditary  insanity.  £  9.  Judicial  determination  of  insanity. 

VI.  Insanity  at  and  after  trial 192-201 

§  1.  Effect.  §  2.  Question,  when  and  how  raised.  §  3.  Deter- 
mination as  to  submission  of  issues.  §  4.  Questions  for  deter- 
mination.    §5.  How  determined.     §6.  Effect  and  conclusiveness 

of  the  determination.  §7.  Insanity  after  verdict.  §8.  Effect  of 
recovery. 

VII.  Incapacity  of  female  which  -will  affect  rape 201-203 

CHAPTER  VIII. 

CIVIL  CASES. 
Civil  rights.  Imbecility.  Crazy.  Unsound  mind.  Delusion.  Moral 
insanity.  Partial  insanity.  Lunatics.  Mental  enfeeblement. 
Political  rights.  Impeachment.  Torts.  Defamation.  False 
accusations  and  confessions.  Punitive  damages.  Contracts. 
Promissory  notes.  Partnerships.  Patents.  Conveyances.  Rati- 
fication. Life  insurance.  Suicide.  Conservation.  Evidence. 
Habeas  corpus.  Personal  injury.  Subjective  symptoms.  Tes- 
tamentary capacity.  Degrees  of  capacity.  Unnatural  disposition 
of  property.  Old  age.  In  insanity  generally.  Lucid  intervals. 
Physical  disabilities.  Delusions  and  strange  beliefs.  Prejudices 
against  relatives.     Undue  influence 204-237 


TABLE    OF   CONTENTS.  Vll 

CHAPTER  IX. 
LEGAL  ADJUDICATIONS  IN  CIVIL  CASES. 

I.  General  considerations 238-242 

§  1.  Rules  applicable  to  civil  cases.     §  2.  Lucid  intervals. 

II.  Contracts 242-250 

§  1.  What  mental  incapacity  affects.  §  2.  Tests.  §  3.  Effect  of 
partial  insanity.     §  4.  Mental  incapacity  combined  with  fraud. 

III.  Conveyances 250-260 

§  1.  What  mental  incapacity  affects.  §  2.  Tests.  §  3.  Time  of 
application  of  tests.  §  4.  Effect  of  partial  insanity.  §  5.  Mental 
incapacity  combined  with  fraud. 

IV.  Proofs  to  establish  insanity  with  relation  to  contracts 

and   conveyances. 260-273 

§  1.  Measure  and  weight.  §  2.  Sufficiency,  how  determined. 
§  3.  Previous  and  subsequent  insanity.  §  4.  Nature  of  the  act. 
§5.  Previous  intentions.  §6.  Acts  and  conduct.  §7.  Conduct 
of  others.  §  8.  Age;  weakness;  disease.  §  9.  Adjudications  of 
unsoundness. 

V.  Wills... 273-375 

§1.  What  insanity  affects — generally.  §2.  Age;  weakness;  disease. 
§  3.  Failure  of  memory.  §  4.  Eccentricity.  §  5.  Capacity  as 
compared  with  the  character  of  the  act.  §  6.  Delusion  test.  §  7. 
Test  of  capacity  for  criminal  responsibility.  §  8.  Test  of  capacity 
to  contract.  §  9.  Test  of  capacity  to  transact  ordinary  business. 
§  10.  Test  of  capacity  to  understand  the  transaction.  §  11.  Com- 
bined test;  capacity  to  understand  claims  to  bounty.  §  12.  Test 
of  capacity  to  collect,  hold,  and  consider  the  facts.  §  13.  Time  of 
application  of  tests.  §  14.  Partial  insanity  defined.  §  15.  What 
partial  insanity  affects  testamentary  capacity.  §  16.  Insane  de- 
lusions defined.  §  17.  Effect  on  testamentary  capacity.  §  18. 
What  delusions  destroy  capacity.  §  19.  Delusions  as  to  the  person 
affected.  §20.  Speculative  beliefs.  §21.  Moral  insanity.  §22. 
Incapacity  in  connection  with  undue  influence  or  fraud.  §  23. 
Testamentary  capacity  —  how  determined.  §  24.  Submission  of 
the  issue.  §  25.  Proof  to  establish — generally.  §  26.  Previous  and 
subsequent  insanity.  §  27.  Testimony  of  attesting  witnesses  and 
others  present.  §  28.  Preparation  of  the  will.  §  29.  Rationality. 
§  30.  Equality  and  justice.  §  31.  Conformity  to  previous  inten- 
tions. §  32.  Subsequent  recognition.  §  33.  Capacity  to  transact 
business.  §  34.  Acts  and  conduct.  §  35.  Suicide.  §  36.  Change 
of  character  or  disposition.  §  37.  Advanced  age  and  attendant 
defects.  §  38.  Physical  condition.  §  39.  Hereditary  insanity. 
§  40.  Proof  as  to  partial  insanity,  and  delusion.  §  41.  Proof  of 
undue  influence  or  fraud  and  incapacity.  §  42.  Proof  of  knowl- 
edge, capacity,  and  intent.  §  43.  Unexecuted  and  nuncupative 
wills.     §  44.  Proof  of  lucid  intervals.     §  45.  Revocation  of  wills. 


Vlli  TABLE    OF    CONTENTS. 

VI.  Gifts - 375-379 

§  1.  later  vivos.     §2.  Of  a  testamentary  character. 

VII.  Partnership;  what  insanity  warrants  dissolution 379-380 

VIII.  Agency... —  381 

IX.  Public  office .. 382 

X.  Marriage 382-391 

§  1.  "What  incapacity  affects.  §  2.  Tests.  §  3.  The  question,  how 
determined.     §  4.  Proof  to  establish  capacity  or  incapacity. 

XI.  Divorce.. 391-397 

§  1.  Insanity  as  a  ground  for.  §  2.  Insanity  as  affecting  adultery. 
§  3.  Insanity  as  affecting  desertion.  §  4.  Insanity  as  affecting 
cruelty.     §  5.  Insanity  as  affecting  the  action. 

XII.  Settlement  or  domicil 397-398 

XIII.  Statute  of  limitations. _ -  398-401 

XIV.  Judgments 401-402 

XV.  Bankruptcy 402 

XVI.  Insurance 403-413 

§  1.  Insanity  as  a  breach  of  warranty.     §  2.  Homicide  by  insane 

act.  §  3.  Insanity  as  affecting  suicide.  §  4.  Test  of  consciousness 
and  intent.  §  5.  Test  of  capacity  to  understand  moral  character 
of  the  act.  §  6.  Test  of  responsibility  for  criminal  acts.  §  7. 
Suicide  under  conditions  against  self-destruction,  sane  or  insane. 
§  8.  Suicide  as  affecting  accident  insurance.  §  9.  Insanity  as 
affecting  mutual  insurance.  §  10.  Existence  of  insanity,  how 
determined.     §  11.  Proof  as  to  insanity. 

XVII.  Guardianship 418-443 

§  1.  Inquisitions — nature.     §  2.  What  incapacity  warrants.     §  3. 

Age;  disease;  weakness.  §  4.  Tests.  §  5.  The  question,  by 
whom  determined.  §  6.  Proof  necessary  to  establish.  §  7.  In- 
quisition as  evidence  —  as  to  subsequent  acts.  §  8.  Effect  of  in- 
quisition on  over-reached  acts.  §  9.  Effect  of  inquisition  with 
respect  to  parties.  §  10.  Evidence  to  rebut  inquisition.  §  11. 
When  superseded. 

XVIII.  Right  to  restrain 443-447 

§  1.  General  rules  as  to  confinement.  §  2.  Discharge  from  con- 
finement. 

CHAPTER  X. 

EVIDENCE  OF  INSANITY. 

I.  Presumption  and  burden  of  proof 449-464 

§  1.  Presumption  of  sanity.  §  2.  Burden  of  proof  of  insanity — 
generally.  §  3.  Burden  of  proof  in  criminal  cases.  §  4.  Burden 
of  proof  in  will  cases. 


TABLE    OF    CONTENTS.  IX 

II.  Measure  of  proof 464-477 

§  1.  Conflicting  character  of  the  criminal  cases.  §  2.  Beyond  a 
reasonable  doubt.     §3.  Preponderance  of  proof.    §  4.  Reasonable 

doubt  of  insanity.     §  5.  Measure  of  proof  in  civil  cases. 

III.  Presumption  op  continuance 477-489 

§  1.  Habitual  insanity.     §  2.  Temporary  insanity.     §  3.   Habitual 

and  temporary  insanity  distinguished.  §  4.  Presumption  of  con- 
tinuance of  a  lucid  interval. 

IV.  Competency  and  admissibility 489-535 

§  1.  Previous  and  subsequent  condition  of  mind.     §  2.  .The  act 

itself.  §  3.  Former  wills  and  deeds.  §  4.  Declarations  and  ad- 
missions of  the  party.  §  5.  Declarations  and  admissions  of  olher 
interested  persons.  §  6.  Letters  and  private  writings.  §  7.  Acts 
and  conduct.  §  8.  Surrounding  circumstances.  §  9.  Relationship 
between  the  parties  interested.  §  10.  Physical  and  mental  con- 
dition. §  11.  Hereditary  insanity.  §  12.  Reputation  and  hearsay. 
§  13.  Adjudications  and  certificates  of  lunacy. 

V.  Expert  and  opinion  evidence. 536-600 

§  1.  Admissibility  of  opinions  of  experts  —  generally.  §  2.  Opin- 
ions founded  on  examination.  §  3.  Opinions  based  upon  the 
evidence.  §4.  Opinions  upon  hypothetical  questions.  §  5.  Qual- 
ification of  experts.  §  6.  Scope  of  opinion  of  experts.  §  7.  Cross- 
examination  of  experts.  §  8.  General  rules  as  to  nonexpert 
opinions.  §  9.  Exceptions  to  the  general  rule.  §  10.  Who  may 
give.  §  11.  The  acquaintance  necessary.  §  12.  Knowledge  which 
will  warrant  an  opinion.  §  13.  Facts  which  may  be  shown  as  a 
basis  for  an  opinion,  §  14.  Scope  of  opinions  of  nonexperts. 
§  15.  Opinions  covering  the  question  at  issue.  §  16.  Time  to 
which  opinion  evidence  relates.  §  17.  Weight— expert  opinion. 
§  18.  Weight — nonexpert  opinions. 

VI.  Attesting  witnesses —  601-605 

VII.  Books - --  605-606 

CHAPTER  XL 
WITNESSES  AND  JURORS. 

I.  Competency  op  witnesses 607-615 

II.  Competency  op  jurors 615-616 


TABLE    OF    CONTENTS. 


VOLUME   II. 


CHAPTER  XII. 

ALCOHOLISM. 

The  first  effect  of  alcoholic  liquors.  Long-continued  and  excessive 
use  of  alcoholic  liquor.  Post-alcoholic  conditions.  Alcoholic 
epilepsy.  Local  statistics  of  alcoholism.  The  causes  of  drunk- 
enness. Delirium  tremens,  or  mania  a  potu.  Alcoholic  trance. 
Dipsomania.  Oinomania.  Alcoholic  paretic  dementia.  Chronic 
alcoholic  insanity.  Alcoholic  dementia.  Cases  of  alcoholism  and 
alcoholic  insanity 617-659 

CHAPTER  XIII. 
LEGAL  CONSEQUENCES  OF  ALCOHOLISM. 

Definitions  of  drunkenness.  The  rule  that  drunkenness  is  no  excuse 
for  crime.  Drunkenness  as  an  aggravation  of  an  offense.  Mitigat- 
ing circumstances.  Delirium  tremens,  or  mania  a  potu.  Insanity 
from  habitual  drunkenness.  Reduction  of  the  degree  of  crime. 
Confessions.  False  accusations.  Absence  of  reasonable  motive. 
The  legal  consequences  of  drunkenness  in  civil  cases.  Testa- 
mentary capacity  in  relation  to  the  effect  of  liquor.  The  super- 
visory and  controlling  laws.     Retreats  for  habitual  drunkards...  660-681 

CHAPTER  XIY. 

THE  DECISIONS  OF  THE  COURT  AS  TO  ALCOHOLISM. 

I.  Alcoholism  as  affecting  criminal  law 682-718 

§  1.  Intoxication  as  an  excuse  for  crime.  §  2.  "When  intoxication 
may  be  shown  generally.  §  3.  Larceny,  burglary,  etc.  §  4. 
Homicide,  §  5.  Intoxication  as  affecting  deliberation  and  pre- 
meditation. §  6.  Assaults.  §  7.  Attempt  to  commit  suicide.  §  8. 
Involuntary  drunkenness.  §9.  Wilful  drunkenness;  insane  tend- 
encies. §  10.  Insanity  induced  by  alcoholism.  §  11.  Intoxica- 
tion under  the  Texas  statute.  §  12.  Intoxication  of  the  person 
injured. 

II.  Alcoholism  as  affecting  contracts 719-729 

§  1.  What  intoxication  affects  generally.  §  2.  Intoxication  com- 
bined with  fraud  or  undue  influence.     §  3.  Discharge  of  employee 

for  intoxication. 


TABLE    OF    CONTENTS.  XI 

III.  Alcoholism  as  affecting  conveyances 729-733 

IV.  Alcoholism  as  affecting  wills 788-740 

V.    ALCOIIOLISM   AS  AFFECTING  GIFTS -    740-741 

VI.   Alcoholism  as  affecting  marriage 741-743 

VII.  Alcoholism  as  affecting  divorce 743-755 

§1.  Drunkenness  as  a  ground  for.     §2.  Drunkenness  as  affecting 

cruel  and  inhuman  treatment.  §  3.  Drunkenness  as  affecting 
desertion. 

VIII.  Alcoholism  as  affecting  offices  and  places  of  trust..  755-757 
IX.  Alcoholism  as  affecting  the  statute  of  limitations...  757-758 

X.  Alcoholism  as  affecting  insurance 758-763 

XI.  Guardianship  and  restraint  of  alcoholics 763-768 

§  1.  What  drunkenness  warrants.  §  2.  Inquisition  of  habitual 
drunkenness  as  evidence. 

XII.  Alcoholism  as  affecting  negligence  _ 76S-776 

XIII.  Proof  of  intoxication... 776-795 

§  1.  Presumptions  and  burden  of  proof.     §  2.  Measure  of  proof. 

§  3.  Proof  of  the  fact  of  intoxication.  §  4.  General  character  and 
habits.  §  5.  Previous  and  subsequent  intoxication.  §  6.  Acts, 
conduct,  and  declarations.  §  7.  Admissions  and  confessions. 
§  8.  Opinions  as  to  intoxication. 

XIV.  Intoxication  as  affecting  witnesses 795-797 

CHAPTER  XV. 

MOKPHINISM  AND  OTHER  ADDICTIONS. 

Absinthe  drinking.  Darnel  seeds  as  an  adulterant  of  liquors.  The 
cocaine  habit  and  insanity.  The  opium  or  morphine  habit.  In- 
sanity from  opium  using.     Other  injurious  drugs. 798-804 

CHAPTER  XVI. 
LEGAL  ADJUDICATIONS  AS  TO  MORPHINISM. 


805-S08 


CHAPTER  XVII. 

HEAD  INJURIES. 

Concussion  of  the  brain.  Compression  of  the  brain.  Traumatic  in- 
sanity. Traumatic  epilepsy  and  the  insanity  of  epilepsy.  Mania 
from  traumatism.  Traumatic  imbecility.  Traumatic  idiocy. 
Cerebral  syphilis  and  syphilitic  insanity  complications.  Trau- 
matic paretic  dementia.  Alcoholism  and  alcoholic  insanity  com- 
plications. Traumatic  dementia.  Cases  of  head  injury.  Prog- 
nosis of  traumatic  insanity 809-840 


Xll  TABLE    OF    CONTENTS. 

CHAPTER  XVIII. 
DEGENERACY. 

Cerebral  neurasthenia.  Casque  neurasthenique.  Obsessions  of  inde- 
cision. Obsessions  of  fear.  Obsession  propensities.  Onomato- 
mania. Kleptomania.  Pyromania.  Dipsomania.  Suicidal  im- 
pulses. Homicidal  impulses.  Erotic  or  indecent  propensities. 
Destructive  propensities.  The  impulse  to  throw  one's  self  from  a 
height.  Aboulic  obsessions.  Obsessions  in  general.  Phrenas- 
thenia.  Paranoia.  Verrucktheit.  Megalomania.  Persecutory 
cases.  Ambitious  cases.  Litigious  cases.  The  mystics.  Folie  d 
.  deux.  Idiocy.  Genetous  or  congenital  idiocy.  Microcephalic 
idiocy.  Eclampsic  idiocy.  Epileptic  idiocy.  Hydrocephalic 
idiocy.  Paralytic  idiocy.  Cretinism.  Traumatic  idiocy.  In- 
flammatory idiocy.  Idiocy  by  deprivation.  Syphilitic  idiocy. 
Idiot  savants.  Causes  of  idiocy.  Imbecility.  Moral  imbecility. 
Cases  of  degeneracy. . - 841-901 

CHAPTER  XIX. 
AGE. 

Senility.  Senile  insanity.  Senile  dementia.  Cases  of  senility  or 
senile  dementia.  The  climacteric.  Climacteric  insanity.  Puberty. 
Masturbatory  insanity.     Hebephrenia 902-943 

CHAPTER  XX. 

VESANIAS. 

Vesanise.  Delirium.  Mania.  Hypochondria.  Hypochondriasis. 
Hypochondriacal  melancholia.  Melancholia.  Melancholia  agitata. 
Melancholia  attonita.  Post  febrile  insanity.  Primary  dementia. 
Stuporous  insanity.  Conf usional  insanity.  Moral  insanity.  Emo- 
tional insanity.  Transitory  frenzy.  Cases  of  alleged  transitory 
frenzy 944-978 

CHAPTER  XXI. 

CHILDBIRTH. 

Mental  states  during  pregnancy.     Puerperal  convulsions.     Puerperal 

insanity.     Lactational  insanity 979-987 

CHAPTER  XXII. 
PERIODICITY. 
Periodical  or  recurrent  insanity.  Periodical  mania.  Periodical 
melancholia.  Katatonia.  Circular  insanity.  Period  of  depres- 
sion. Melancholia.  Melancholia  cum  stupore.  The  physical 
symptoms.  Period  of  excitement.  Kleptomania.  Dipsomania. 
Eroticism.  Maniacal  excitement  with  incoherence.  Mania  with 
ideas  of  exaltation.  Physical  symptoms.  Lucid  interval.  For- 
ensic medicine.     Cases  of  periodical  insanity 988-1019 


TABLE    OF    CONTENTS.  Mil 

CHAPTER  XXIII. 
HYSTERIA. 
Mental    hysteria.      Lyssaphobia.     Temporary  hysterical   insanity. 

Hysterical  insanity.. 1020-1033 

CHAPTER  XXIV. 
EPILEPSY. 

Major  epilepsy.  Minor  epilepsy.  Mental  epilepsy.  Epileptic  in- 
sanity; paroxysmal  mental  disturbances;  epileptic  mania.  Inter- 
paroxysmal  mental  state.  Cases  of  epilepsy  and  epileptic  in- 
sanity  1034-1064 

CHAPTER  XXV. 
LEGAL  ADJUDICATIONS  AS  TO  EPILEPSY. 
_ 1065-1070 

CHAPTER  XXVI. 

PHTHISIS. 

Tuberculosis.     Phthisical  insanity.     Suspiciousness 1071-1074 

CHAPTER  XXVII. 

RHEUMATISM  AND  GOUT. 

Rheumatic  insanity.     Gouty  insanity 1075 

CHAPTER  XXVIII. 
DESTRUCTIVE  BRAIN  DISEASES. 

Aphasia.  Amnesia.  Amnesic  aphasia.  Ataxic  aphasia.  Para- 
phasia. Monophasia.  Agraphia.  Alexia.  Amimia.  Apraxia. 
Aphonia.  Softening  of  the  brain.  Dementia  from  coarse  brain 
disease.  Atheromatous  insanity.  Delirium  grave.  Syphilis. 
Cerebral  syphilis.  Syphilitic  dementia.  Syphilitic  paretic 
dementia.  Paretic  dementia.  Terminal  dementia.  Cases  of 
paretic  dementia 1076-1 103 

CHAPTER  XXIX. 
ETIOLOGY. 

Causes  of  insanity.  Proportion  per  cent  to  the  admission.  Moral 
causes.  Physical  causes.  Diseases.  Poisons.  Predisposition. 
Idiosyncrasy.  Civilization.  Emotionalism.  Sexes.  Ages. 
Seasons.  Marriages.  Professions.  Heredity  :  —  immediate, 
mediate,  simple,  cumulative,  double,  direct,  collateral,  ho- 
mochronous,  anticipatory,  similar  or  homologous,  dissimilar 
or  transformed,  progressive,  regressive.. 1104-1123 


TABLE    OF    CONTENTS. 

CHAPTER  XXX. 

PROGNOSIS. 
1124-1127 


CHAPTER  XXXI. 

PATHOLOGY. 

Perverted  circulation.  Toxaemias.  Auto-toxsemias.  Brain  deform- 
ities.    Brain  degradation 1128-1165 

CHAPTER  XXXII. 

TREATMENT. 

Malpractice.  Lavage.  Gavage.  Evacuants.  Hypnotics.  Stim- 
ulants. Tonic  treatment.  Hydrotherapy.  Moral  influences. 
Diversion.  Hygiene.  Hypnotic  suggestion.  Employment. 
Restraint  or  nonrestraint.  Classification.  Admissions.  Dis- 
charges. Correspondence.  Visitors.  Supervision.  Attendants. 
Maintenance 1166-1256 


APPENDIX. 

SCIENTIFIC  BOOKS  AND  TREATISES  AS  EVIDENCE. 

I.  Exact  sciences 1257 

§1.  General  rule  as  to  admissibility.  §2.  Tables  of  expectancy 
of  life.     §  3.  Almanacs. 

II.  Inexact  sciences  ...    1266 

§  1.  General  rule  as  to  admissibility.  §  2.  Reasons  for  the  rule. 
§3.  The  contrary  rule.  §4.  Opinions  founded  on  books.  §5. 
Use  of,  on  examination.  §  6.  Use  of,  to  sustain  or  discredit 
experts.  §  7.  Use  of,  on  cross-examination.  §  8.  Use  of,  in 
argument. 

III.  Law _ 1281 

IV.  Miscellaneous  matters 1284 


CASES    CITED. 


Aber  v.  Clark,   Den,   10  N.  J.   L. 
258,  18  Am.  Dec.  417. 

431,  438,  439 
Abraham  v.  Wilkins,  17  Ark.  292 

274,  280,  286,  559,  601 
Accident  Ins.  Co.  v.  Crandall,  120 

U.  S.  527,  30  L.  ed.  740-404 

Achey  «.  Stephens,  8  Ind.  411 

241,  261,  451,  478 
Adams   v.    State,   34  Tex.    Crim. 

Rep.  470__. 578 

Adamson  v.  Smith,  2  Mill  Const. 

269,  12  Am.  Dec.  665..  400 
Addingtou  v.  Wilson,  5  Ind.  137, 

61  Am.  Dec.  81.306,  330,  333 
Adkins  v.   Columbia  L.   Ins.  Co. 
70  Mo.  27,  35  Am.  Rep. 

410 411 

Adler  v.  State,  35  Ark.  517,  37  Am. 

Rep.  48 ..193,  199 

iEtna  L.  Ins.  Co.  v.  Davey,  123U. 
S.  739,  31  L.  ed.  315. .. 

759,  760,  761,  807 
v.  Deming,  123  Ind.  384.761,  762 

v   Hanna,  81  Tex.  487 762 

Aikin  v.  Weckerly,  19  Mich.  482.. 
279   291 
344,  460,  461,  462,'  476,'  477 

Aiman  v.  Stout,  42  Pa.  114 

243,  251,  269,  586 
Alcock    v.    Royal    Exch.    Assur. 

Corp.  13  Q.  B.  292....  789 
Aldrich  v.  Bailey,  132  N.  Y.  85.. 

253,  260 
Alexanders.  Alexander,  5  Ala.  517-311 
Alexander's  Will,  27  N.  J.  Eq.  463-346 

Alger  v.  Lowell,  3  Allen,  402 

769,  770,  771,  775 
Allcard  v.  Skinner  (1887)  L.  R.  36 

Ch.  Div.  181... 235 

Alleman  v.  Stepp,  52  Iowa,  626...  613 

Allen  v.  Allen,  31  Mo.  479 752 

v.  Griffin,  69  Wis.  529 459 

v.  Public  Administrator,    1 

Bradf.  378 316,  459 

«.  State,  60  Ala.  19 610,  614 

Allis®.  Moore,  2  Allen,  306 400 

Allison  v.  Allison,  7  Dana,  91.374,  604 
v.  Allison,  46  111.  61,  92  Am. 

Dec.  237. 321,  323 


Allison  v.  Taylor,  6  Dana,  87,   32 

Am.  Dec.  68 401 

Allison's  Case,  35  N.  Y.  S.  R.  363.  377 
Allore  v.  Jewell,  94  U.  S.  506,  24 

L.  ed.  260  _.:_258,  259,  399 
Alstons.  Boyd,  6  Humph.  5U4...  246 

v.  Jones,  17  Barb.  276 339 

American  Bible  Soc.  v.  Price,  115 

111.  623 

296,  301,  304,  311,  329,  559 
American  L.  Ins.   Co.  v.  Isett,  74 

Pa.  176.. 408,409 

American  Seaman's  Friend  Soc.  v. 
Hopper,  33  N.  Y.  t>19._ 

278.  282,  295,  301 
Ames's  Case,  51  Iowa,  596.351,  505,  543 
Anderdon  v.  Burrows,  4  Car.  &  T. 

210 443 

Anderson  v.   Cranmer,  11  W.  Va. 

562 255, 

263,  451,  454,  479,  481,  561 

v.  Irwin,  101  111.  411 462 

v.  State,  43  Conn.  514,  21 

Am.  Rep.  669 

90,  126,  163,  164,  172 

v.  State,  42  Ga.  9 

130,  171,  470,  551 

v.  State,  25  Neb.  550 

126,  131.  135 
Andress  v.  Weller,  3  N.  J.  Eq.  604 
274,  286, 
288,  488,  734,  737,  77S,  779 
Andrews's  Case,  33  N.  J.  Eq.  514.  592 
Angell  v.  Probate  Court,  11  R.  I. 

187 419 

Anonymous,  17  Abb.  N.  C.  231..  749 

21  Am.  Jurist.  7 664 

2  Kay  &  J.  441.. 380,  381 

4  Pick.  32 ...3S4,  386,  389 

Anthony  v.  Hutchins,  10  R.  I.  165 

251,  257 
Appleby  v.  Brock,  76  Mo.  314.5S4,  563 
Arbery  v.  Ashe,  1  Hagg.  Eccl.  Rep. 

214 341 

Argo  v.  Coffin,  142  111.  368 

269,  449,  453 
Armor  v.  State,  63  Ala.  176... 695,  794 

Armour's  Estate,  154  Pa.  517 307 

Armstrong  v.  Farrar,  8  Mo.  627.  . 

503,  505 
v.  Short,  1  Hawks.  11.. 430,  451 
v.  State,  27  Fla.  366. ...471,  474 


XV 


XVI 


CASES    CITED. 


Armstrong  v.  State,30  Fla.  170, 17  L. 

R.  A.    484 181,  457, 

471,  477,  479,  557,  561,  596 
v.  Timmons,  3  Harr.  (Del.) 

342..449,  477,  478,  608,  612 
Arnold  v.  Hickman,  6  Munf.  15..  720 
v.  Richmond  Iron  Works,  1 

Gray,  434 209 

v.     Townsend,     14     Phila. 

216 439 

Arnold's  Case  (1724)  16  How.  St. 
Tr.  695,   Harg.   St.  Tr. 

322 13,  128,  134.  139 

Case.  14  Hun,  525 584,  589 

Asbury  v.  Fair,  111  N.  C.  251 

263,  399,  400 

Ash's  Case,  Freem.  Ch.  259_ 446 

Asbcraft  v.  De  Armond,  44  Iowa, 

229 491,493,  494.  528 

Aszman  v.  State,  123  Ind.  347,  8  L. 
R.A.  331. -.27,180,  682, 
684,  688,  689,  693,  699,  701 

Atkins  v.  Sanger,  1  Pick.  192 504 

Atkinson,  Ex  parte,  Jac.  Ch.  333..  425 

v.  Medford,  46  Me.  510 384 

Attorney  General  v.  Parnther,  3 
Bro.  Ch.441.___67,  242, 
370,  371,  372,  453,  479,  526 

Atwood  v.  Smith,  11  Ala.  894 427 

Aubert  v.  Aubert,  6  La.  Ann.  104 

242,  275,  284,  525 
Aurantz  v.  Anderson,  3  Pittsb.  310 

241,  261,  478,  480,  481,  483 

Aurora  «.  Hillman,  90  111.  61 

771,  775,  795 
Austen  v.  Graham,  29  Eng.  L.  & 

Eq.  38 315,  329 

Avery  v.  Avery,  33  Kan.  1,  52  Am. 

Rep.  523 394 

Ayres  v.  Ayres,  43  K  J.  Eq.  565.  . 

355,  805,  1072 
v.   State  (Tex.  Crim.  App.) 

26  S.  W.  396 698,  705 

Ayrey  v.  Hill,  2  Add.  Eccl.  Rep. 

206 733 


B. 


Baccigalupo  v.  Com.  33  Gratt.  807, 

36  Am.  Rep.  795... 456,  467 
Bachmeyer  v.  Mut.  Reserve  Fund 

L.  Ins.   Asso.  82  Wis. 

255,  87  Wis.  328 

412,  413,  415,  417,  477 
Bagshaw    v.    Parker,    10    Beav. 

532 379 

Bailev  v.  State,  26  Ind.  422... 682,  709 
Bailey's  Case,  7  Jur.  N.  S.712....  347 
Baker  0.  Baker,  82  Ind.  146..391,  393 


Baker  v.  Baker,  L.  R.  5  Prob.  Div. 
142,  49  L.  J.  Prob.  N.  S. 
49,  42  L.  T.  N.  S.  332, 
28  Week.  Rep.  630, 
Aff'd  in  L.  R.  6  Prob. 
Div.  12,  49  L.  J.  Prob. 

N.  S.  83 396 

0.  Cartw right,  IOC.  B.  K  S. 

124 383 

0.  Lewis,  4  Rawle,  356 330 

Baldrick  v.  Garvey,  66  Iowa,  16..  270 
Baldwin  v.  Dunton,  40  111.  181... 

244,  245,  248 
v.  Parker,  99  Mass.  792,  96 

Am.  Dec.  697 308 

v.  State,  12  Mo.  223 

173.  467,  558,  589 

v.  State,  15  Tex.  App.  275..  202 

Baldwin's  Appeal,  44  Conn.  37...  605 

Estate,  13  Wash.  666 462 

Ball®.  Com.  (Ky.)  18  Cent.  L.  J. 
438,  16    Chicago    Leg. 

News,  289 466 

v.  Mannin,  3  Bli$rh,  U.  S.  1, 

lDow&C.880.251,252,  254 
Ballantine  0.  Proudfoot,  62  Wis. 

216 289,  296,  302 

Ballard  v.  State,  19  Neb.  610 

457,  543,  685 

Ballew  v.  Clark,  2  Ired.  L.  23 

449.  454,  478,  480 
Balston  v.  Turpin,  129  U.  S.  663, 
32  L.  ed.  747,  25  Fed. 

Rep.  7 732 

Baltimore  &  O.  R.  Co.  v.  Boteler, 

38  Md.  568 770,  775,  785 

v.  Henthorne,  73  Fed.  Rep. 

634 786 

«.  State,  Chambers,  81  Md. 

371 770 

Banker  v.  Banker,  63  N.  Y.  409, 

388,  435,  437 
Banks  v.  Goodfellow  (1870)  L.  R. 

5  Q.  B.  549... 157,  158,  224 
v.  Goodfellow,  22  L.  T.  N. 

S.  820 

289,  293,  294,  296, 
297,  298,  309,  343,  344,  461 
Bannatyne  0.  Bannatyne,  14  Eng. 
L.   &  Eq.  581,  16  Jur. 

864 242,  372,  436,  439 

Bannister  v.  Jackson,  45  N.  J.  Eq. 

702 488,734,  737 

Barber  v.  Barber  (Conn.)  14  Law 

Rep.  375 744,  808 

Barber's  Appeal,  63  Conn.  393,  22 

L.  R.  A.  90 457, 

458,  462,  476,  477,  543,  552 

Barbo  v.  Rider,  67  Wis.  598 429 

Barker  v.  Comins,  110  Mass.  477.. 

290,  334,  460,  461,  495,  512 


CASES    CITED. 


XV11 


Barker  v.   Northern  P.  R.  Co.  65 

Fed.  Rep.  460. 243 

v.  Pope,  91  N.  C.  165.. 529,  559 
v.  Savage,  1  Sweeny,  288... 

785,  796 
Barker's  Case,  2  Johns.  Ch.  232.. 

422,  423.  424 

Barnes  v.  Barnes,  66  Me.  286 

284,  460,  461 
Barney    v.    Dimmitt,    1    Wright 

(Ohio)  44 725 

Barnhardt  ».  Smith,  86  N.  C.  473 

273,  286 

Barnsley,  Ex  parte,  3  Atk.  168 

9,  12,  419 
Barrett  v.  Buxton,  2  Aik.  (Vt.)  167, 

16  Am.  Dec.  691 

719,  726,  737 
Barry  v.  Butlin,  2  Moore,  P.  C.  C. 

482 326,  739,  740 

v.  Butlin,  1  Curt.  Eccl.  Rep. 

637.. .365,368,  461 

Bartee  v.  Thompson,  8Baxt.  508..  459 
Bartholemew  t>.    People,    104  111. 
605,   44  Am.    Rep.    97 

(1882) 

665,  688,  691,  692,  707 
Bartholick's  Case,  1  Connoly,  373_  342 
Batchelder  v.  Batchelder,  14  N.  H. 

380 743,  748 

Bates  v.  Ball,  72  111.  108 721 

v.  Bates,   27    Iowa,    110,    1 

Am.  Rep.  260 498,  500 

Baughman  v.  Bauguuian,  32  Kan. 

538 ..384,  386,  567 

Baumgarden  v.    Langles,   35   La. 

Ann.   441. 261 

Bawden  v.  Bawden,  2  Swab.  &  T. 
417.  3  L.  J.  Mat.  N.  S. 
94,  8  Jur.  N.  S.  157,  6 
L.  T.  N.  S.  27, 10  Week. 

Rep.  292.... 396 

Baxter  v.  Abbott,  7  Gray,  71 

321,  459 
461,  517,  527,  537,  547,  603 

v.  Baxter,  76  Hun,  98 273 

v.  Portsmouth,  5  Barn.  &  C. 
170,  2  Car.  &  P.  178. .. 

429,  441 
Beall  v.  Cunningham,  1  B.  Mon. 

399.... 505 

Bean  v.  Bean,  11  Lane.  Bar.  138. .  743 
Beasley  v.   State,  50  Ala.  149,  20 

Am.  Rep.  292 ..:. 

130,  170,  171, 
178,  183,  495,  682,  685,  709 
Beaubien  v.  Cicotte,  8  Mich.  9.452,  461 

v.  Cicotte,  12  Mich.  459 

288,  289,  315, 
496,  506,  514,  517,  560, 
562,  576,  580,  591,  596,  598 


Beaumont's  Case.  1  Whart.  52,  99 

Am.  Dec.  33 421,  424 

Beavan  v.  McDonell,  26  Eng.  L.  & 

Eq.  540 491,  586 

Beazley  v.  Denson,  40  Tex.  416...  461 

Beck  v.  State.  76  Ga.  452 

450,  455.  467,  503,  682, 
685,  686,  6»5,  709,  713,  782 
Behrens  v.    McKenzie,   23    Iowa, 

333,  92  Am.  Dec.  428..  245 
Belcher  v.  Belcher,  10  Yerg.  121 .. 

730,  741 
Bellv.  Bennett,  73  Ga.  784. ..384,  387 
v.  Buckmaster,  1  Harr.  (Del.) 

460,  note ...451,  459 

v.  Lee.  28  Grant,  Ch.  439...  302 
v.  McMaster,  29  Hun,  272..  579 
v.  Rinner,  16  Ohio  St.  45.. 

608,  613 

Beller  v.  Jones,  22  Ark.  92 

244,  558,  569,  584 
Bellingham'sCase,  1  Collinson,  Lu- 
nacy, 636 23, 

131,  132,  133,  134,  139, 
140,  168,  178,  182,  465,  467 
Bennett  v.  Bennett,  50  N.  J.  Eq. 

439 288 

v.  Hibbert,  88  Iowa,  154.344,  345 
v.  State  (Wis.)  4  Crim.  L. 

Mag.  378 165 

v.  State,  57  Wis.  67,  46  Am. 

Rep.  26.. 174,  540,  541,  585 
v.  State,  Mart.  &  Y.  133...  683 

v.  Vade,  2  Atk.  324.. 241 

Benoist  v.  Murrin,   58  Mo.  307... 

256,  285,  294,  295.  460,  463 
Bensell  v.    Chancellor,    5  Whart. 

371,  34  Am.  Dec.  531..  503 
Bergin  v.  State,  31  Ohio  St.  111..  456 
Berkley  v.  Cannon,  4  Rich.  L.  136, 

719,  723 

Bernhardt  v.  State,  82  Wis.  23 699 

Berrien's  Will,  35  N.  Y.  S.  R.  255-324 

Will.  34  N.  Y.  S.  R.  332.297,  336 

Berry  v.  Hall,  105  N.  C.  154.. 259,  264 

v.  Hamilton,  10  B.  Mon.  129-357 

v.  State,  10  Ga.  512 558 

Berryman  v.  Berryman,  59  Mich. 

605 746,  749 

Best  v.  Best,  11  Ky.  L.  Rep.  215..  738 
Bever  v.  Spangler,  93  Iowa,  576. . 

319, 
343,  478,  487,  494,  501, 
544,  545,  553,  555,  591,  503 
Beverley  «.  Walden,20  Gratt.  147.  266 

Beverly's  Case,  4  Coke,  125a 

241,  251,  684 
Beville  v.  Jones,  74  Tex.  148.. 251,  258 
Bey's  Succession,  40  La.  Ann.  773, 

24L.R.  A.577 

324,327,340,371,  489 


2a 


xvm 


CASES    CITED. 


Beyley  ®.  Alexander,  East's  Notes, 

Cas.  79,  Morley's  India 

Digest,  352 

Bice*.  Hall,  120  111.   597 603, 

Bickel  ®.  Bennet,  Com.,  15  W.  N. 

C.  515. 

Bicknell  Case,  3  Add.   Eccl.  Rep. 

231 

Bigelow  ».  Berkshire  L.  Ins.  Co.  93 

U.  S.  284,  23  L.  ed.  918- 
Billinghurst  ®.  Vicars,    1  Phillim. 

Eccl.  Rep.  193.364,365, 

Billings  ®.  State,  54  Ark.  588 

Bird  ®.  Bird,  2  Hagg.   Eccl.   Rep. 

142... 368, 

Birdsall's  Case,  Ray  Med.  Jur.  465- 

Case,  2  Connoly,  433 

Birdsong  ®.  Birdsong,  2  Head,  289 

247,  726, 

Birdzell  v.  Birdzell,  33  Kan.  434, 

52  Am.  Rep.  539 

Bishop  ®.  Hendrick,  42  N.  Y.  S.  R. 

296 

Bitner®.  Bitner,  65  Pa.  347 

512,  537,  538, 
Bittleson  ®.   Clark,    2  Lee,    Eccl. 

Rep.  229 274, 

Bixler  ®.  Gilleland,  4  Pa.  156 

Blachford  ®.  Christian,  1  Knapp, 

73 254, 

Black  v.  Ellis,  3  Hill,  L.  68 

488,  778, 

Black's  Estate,  132  Pa.  134 

Blackburn  ®.   State,  23   Ohio  St. 

148 131,  132,  134, 

Black  Hawk  Co.   ®.  Springer,  58 

Iowa,  417 426, 

Blackmore's  Case,  1  DeG.  J.  &  S. 


Blackstone  ®.  Standard  L.  &  Acci. 
Ins.  Co.  74  Mich.  592, 
3L.  R.  A.  486.-9,  405, 
408,  409,  413,  415,  418, 

Blagg  ®.  Hunter,  15  Ark.  246 

Blair  Case,  16  Daly,  540 277, 

Blake  ®.  Garwood,  42  N.  J.  Eq. 

276 

v.  Rourke,  74  Iowa,  519 

478,  483,  588,  594, 

®.  State,    121    Ind.    438,    16 

Am.  St.  Rep.  408.  .173, 

Blakeley  o.  Blakeley,  33  N.  J.  Eq. 

508  253 

Blakely's  Will"  48  Wis."  "2~9~4_~-116,' 

205.  289,  293,  300,  336, 

Will,  48  Wis.  298 

Blaker's  Case,  27  N.Y.  Week.  Dig. 

486 

Blakey  v.  Blakey,  33  Ala.  611.331, 
Blanchard  v.  Nestle,  3  Denio,  37- 

279, 


410 
604 

446 

373 

-411 

736 
583 

952 
■669 
342 

728 

395 

273 

547 

952 

768 

258 

779 

768 

174 
444 
442 


493 
740 


381 

595 

175 

256 

338 
342 

534 
505 

280 


Blaney®.  Blaney,  126  Mass.  205.. 

743,  746 
Bledsoe  ®.  Bledsoe  (Ky.)  1  S.  W.  10 

330,  332,  333 
Bleecker  ®.  Lynch,  1  Bradf.  458.. 

275,  277,  349 
Blewitt  ®.  Blewitt,  4  Hagg.  Eccl. 

Rep.  410 J 370 

Blimm®.  Com.  7  Bush.  320.. 682, 

686,  693,  694,  695,  708,  709 
Bliss  ®.  Connecticut  &  P.  R.  R.  Co. 

24  Vt.  424 400,  719,  757 

Blocher  ®.  Hostetter,  2  Grant,  Cas. 

288 560 

Blood's  Will,  62  Vt.  359. .511,  512,  561 
Bloodworth  ®.  State,  6  Baxt.  621, 

32  Am.  Rep.  546 202 

Blough  ».  Parry,  144  Ind.  463,  43 

N.  E.  560 275,  459,  463 

Boardman  ®.  Woodman,  47  N.  H. 

120... 24,  158,  159,  297, 

306,  321,  536,  549,  564,  602 
Bogardus     ®.     Clark,     4    Paige, 

623 433 

Boggess  ®.  Boggess,  127  Mo.  305.. 

250,  253,  268,  503,  750 

Boiling®.  State,  54  Ark.  588 

127,  170, 

175,  455,  502,  510,  571,  581 
Bomgardner  ®.  Andrews,  55  Iowa, 

638  559 

Bonard's  Will.  16*  Abb.  ~Pr.~  "if." S: 

128 303,  304 

Bond  v.  Bond,  7  Allen,  1 

208,  244,  256,  257 
®.  State,  23  Ohio  St.  349... 

466,  467 
Bonds  v.  State,  1  Mart.  &  Y.  143, 

17  Am.  Dec.  795 

Bonfanti  ®.  State,  2  Minn.  123 

Bonner®.  Matthews,  Cited  by  Shel- 

ford  on  Lunacy,  327 

».    Northwestern  Mut. 

Relief   Asso.    90    Wis. 

144 ...268,407,  576 

Blundell,    19   Ves.   Jr. 

494... 315, 

321,  322,  323,  338,  499,  508 
Boren  ®.  State,  32  Tex.  Crim.  Rep. 

637. 129,  164,  180,  466 

Borlase    v.    Borlase,    4  Notes  of 

Cases,   106.. 373 

Borradale  v.  Hunter,  5  Man.  &  G. 

639 406 

Bost®.  Bost,  87  N.  C.477... 

288,  289,  521.  559,  582 
Boswell  ®.  Com.  20  Gratt.  860.... 

465,  467,  470,  683,  685,  709 
v.  State,  63  Ala.  307,  35  Am. 

Rep.  20 

169,  170,  171,  175,  466 


Boorman 


Bootle  ®. 


200 
456 

366 


CASES    CITED. 


MX 


Boughton  v.  Kniclit.  L.  R.  3  Prob. 
&  Div.  64,  28  L.  T.  N. 
S.  562.  42  L.  J.  Prob. 

N.  S.  41... 

187,  274,  279,  282, 
283,  295,  300,  486,  495,  514 

Bovard  v.  State,  30  Miss.  600 

]65,  166.  169,  172 
v.    Wallace,  4  Serg.  &  R. 

499  .  505 

Bowrien  v.  Achor,  95  Ga.  "243.49V,  561 

v.  People,  12  Hun,  85.. 493,  712 

Bowie  v.  Bowie,  3  Md.  Ch.  51 750 

Bowler's  Case,  1  Collinson,  Lun- 
acy, 673 

131,  139,  178,  179,  1069 
Bowling®.  Bowling,  8  Ala.  538.. 

557,  561 
Bowman  v.  Van  Baum,  17  Phila. 
633,  14  W.  N.  C.  185.. 

253,  435,  436,  441,  535 
Boyce  v.  Phoenix  Mut.  L.  Ins.  Co. 

14  Can.  S.  C.  723 760 

v.  Smith,  9  Gratt.  704 256 

Boyd  v.  Boyd,  66  Pa.  283 367 

v.  Eby,  8  Watts,  66. 505 

Boyer  v.  Berryman,  123  Ind.  451..  401 

Boyer's  Estate,  166  Pa.  630 314 

Boylan  v.  Meeker,  15  N.  J.  Eq.  310 

344,  498,  501,  511 
v.  Meeker,  28  N.  J.  L.  274.. 

331,  332,  333.  451,  478,  481 

Brace  v.  Black,  125  111.  33. 

297,  303,  311,  499,  568 
Bradbury,  Ex  parte,  3  Jur.  1108,  4 

,     Dea,  202... 435,  437 

Bradford  v.  Abend,  89  111.  78,  31 

Am.  Rep.  67 395 

Bradley  v.  Second  Ave.  R.  Co.  8 

Daly,  289 772,  773 

«.  State,  31  Ind.  492 173 

191,  458,  472,  527,  682,  709 
Brady  v.   McBride,  39  N.  J.  Eq. 

495 433,  436 

Bramhall  v.  United  States,  6  Ct. 

CI.  238 401 

Bramlette  v.  State,  21  Tex.  App. 

611,  57  Am.  Rep.  622..  705 
Brand  v.  Brand,  39  How.  Pr.  193 

559,  561,  602 
v.  Schenectady  &  T.  R.  Co. 

8  Barb.  368 772,  773 

Breasted  v.  Farmers'  Loan  &  T. 
C0.8N.Y.  299,  59  Am. 

Dec.  482. .405,  410 

Breed  v.  Pratt,  18  Pick.  115.. 367,  432 
Breedlove  v.  Bundy,  96  Ind.  319..  609 
Bressy  v.  Gross  (Ky.)  7  S.  W.  150.  376 
Brewer  v.  Ferguson,  11  Humph. 

565 506 

Brick  v.  Brick,  66  N.  Y.  144 341 


Bricker  v.  Lightner,  40  Pa.  199... 

569,  614 
Brfghamfl.  Brigham,  12  Mass.  504  128 
Brindle  v.   Mcllvaine,  10  Serg.  & 

R.  282 ...785,  796 

Brinkley®.  State,  58  Ga.  296..  130,  528 
Briukman  v.   Rueggesick,  71   Mo. 

553 227,  284,  528 

Brinton's  Estate,  13  Phila.  234 296 

Brittan  v.  Mull,  99  N.  C.  483..     .  401 
Broaddus  v.  Broaddus,  10  Bush. 299 

330   331,  333 
Broadstreet  v.  Broadstreet,  7  Mass. 

474 392 

Brock  v.  Luckett,  4  How.  (Miss.) 

459 344,  604 

Brogden  v.  Brown,  2  Add.  Eocl. 

Rep.  441.. 307, 366,  371,  950 
Brooke  v.  Berry,  2  Gill,  83... 259,  276 

Brooks  v.  Barrett,  7  Pick.  94 

346,  459,  461,  476,  477 
Brooks's  Estate,  54  Cal.  471.  _  559,  568 
Brookshaw  v.  Hopkins,  Lofft.  243.444 
Broome  v.  Ellis,  2  Lee,  Eccl.  Rep. 

528 324 

Brotherton  v.  People,  75  N.  Y.  159 

450,  456,  457,  472,  473 
Broughton    v.    Knieht,    L.    R.    3 

Prob.  &  Div.  64 361 

Brounckera.  Brouncker,2Phillim. 

Eccl.  Rep.  57 274 

Brown  v.  Brown,  38  Ark.  324 

743,  745,  751,  764 

v.  Brown,  39  Mich.  792 454 

v.  Bruce,  19  U.  C.  Q.  B.  35 

311,  452 
v.  Com.  14  Bush.  398... 179, 

470,  474,  542,  560,  569,  573 

©.  Com.  78  Pa.  122 

133,  173,  175,  456,  466,  486 
v.  Mitchell,    87    Tex.     140, 

dicta,  75  Tex.  9... 

287,  496,  537,  559,  584 
v.  Mitchell,  88  Tex.  350,  36 

L.  R.  A.  64 

284,  497,  501,  586,  587 

v.  Moore,  6  Yerg.  272 505 

v.  Riargin,  94  111.  560... 276, 

284,  292,  310,  340,  485,  595 
v.  State,  4  Tex.  App.  275.. 

683,  698,  701 

v.  Torrey,  24  Barb.  583 

318,  341,  355,  459 
v.   Ward,    53   Md.    376,   36 

Am.  Rep.  422 

288.  451,  459,  520 
v.  Westbrook,  27  Ga.  102.. 

383,  387,  392 
Brown's  Case,  1  Abb.  Pr.  112....  763 

Case,  45  Mich.  326 421 

"Will,  38  Minn.  112. ...500,  501 


XX 


CASES    CITED. 


Browne  v.  Molliston,  3  Whart.  129.577 
Brownfield  v.   Brownfield,  43  111. 

147 517 

Browning  v.  Budd,  6  Moore,  P.  C. 

430 461,  476 

v.  Reane,    2  Phillim.    Eccl. 

Rep.  69 382,  383, 

384,  385,  389,  391,  435,  455 

Brush's  Case.  61  Hun,  193 441 

Brunt  v.  Brunt,  L.  R.  3  Prob.  & 

Div.  37 373 

Bryant  v.  Jackson,  6  Humph.  199 

207,  494 
Brydges  v.  Kins:,  1  Hagg.  Eccl. 

Rep.  256 365 

Buckey  v.  Buckey,  38  VV.  Va.  168 
251,  253,  254,  255,  262, 

271,  451,  454,  500 
Buckhannon  v.  Com.  86  Kv.  110. . 

682,  684,  698,  714 
Buckland  t>.  Charlemont,  3  Pick. 

173 ---  397 

Buckley's  Case,  16  N'.  Y.  S.  R.  983-341 

Buckman's  Will,  64  Vt.  313 496 

Bulger  v.  Ross,  98  Ala.  267 

274,  288,  291,  333 

Bullt\  Wheeler,  6  Dem.  123 299 

Bull's  Case,  2  N.  Y.  Supp.  52 317 

Case,  14  Daly,  510 567 

Bunce    v.    Gallagher,    5  Blatchf. 

489 381 

Bunch   v.   Hurst,  5  Desauss.  Eq. 

273,  5  Am.Dec.551.259,  266 
Bundy  v.  McKnight,  48  Ind.  502. . 

274,  500,  596 

Burger  r.  Hill,  1  Bradf.  360 364 

Burgess  v.  Pollock,  53  Iowa,  273,  ' 

36  Am.  Rep.  21S 256 

Burgo  v.  State,  26  Xeb.  639 

125.  130,  172,  173 
Burkhard  v.  State,  18  Tex.  App. 

599 126,  131,  489,  717 

Burkhart  v.  Gladish,  123  Ind.  338 
9,  282,  288,  291,294,  298, 
361.  517,  522,  561,  567,  577 
Burley  v.  McGough,  115  111.  11...  592 
Burnell  v.  Taylor,  9  Ves.  Jr.  381  _  615 
Burnham  v.  Kidwell,  113  111.  425.  251 
v.  Mitchell,  34  Wis.  117.... 
241,  398, 
399,  531,  534,  559,  567,  571 

Burns®.  Burns,  13  Fla.  369 744 

v.  Elba,  32  Wis.  605.771.  775,  779 
v.  O'Rourke,  5  Robt.  649...  720 

Burr  v.  Duvall,  8  Mod.  59 331 

Burr's  Case,  3  Barb.  Ch.  208 442 

17  Barb.  9 421,  423,  442 

Burritt  t\  Silliman,  16  Barb.  198. .  739 
Burroughs  v.  Richman,  13  N.  J.  L. 
233,  23  Am.  Dec.  717.. 

721,  724,  783,  793 


Burrows  v.  Burrows,  1  Hagg.  Eccl. 

Rep.  109 347 

Burrows's  Case,  1  Lewin,  C.  C.  75 

684,  709,  713 

Burt  v.  Burt,  168  Mass.  204 

743,  744,  808 
v.  Quisenberry,  132  III.  385. 

251,  253,  269,  271 
Burton  v.  Eyden,  L.  R.  8  Q.  B  295-414 
v.  Scott,  3  Rand  (Va.)  399_. 
317,  452. 
453,  459,  479,  481,  505,  597 
v.  State,  33  Tex.  Crim.  Rep. 

138 180 

Bush  v.  Breinisc,  113   Pa.  310,  57 

Am.  Rep.  469 719,  720 

v.  Lisle,  89  Ky.  393  ....526,  808 
Bush's  Will,  5  N.  Y.  Supp.  23.. ..  319 

Butler  v.  Benson.  1  Barb.  526 604 

■o.  Mulinhill,  1  Bligh.  137. .  727 
v.  St.    Louis  Ins.    Co.   45 

Iowa,  93_-532,  533,  567,  580 

v.  State,  97  Ind.  378 616 

Butlin  v.  Barry,  1  Curt.  Eccl.  Rep. 

614. ..366,  368 

Button  v.  Hudson  River  R.  Co.  18 

N.  Y.  248 773 

v.  McCauley,  38  Barb.  413.  790 
Buys  v.  Buys,  99  Mich.  354 575 

C. 

C v.  C ,  28  Eng.  L.  &  Eq. 

603 751 

Cadwallader  t.  West,  48  Mo.  483. 

250,  259 

Cady's  Case.  36  Hun.  122. 756 

Cain  v.  Warford,  33  Md.  23 244 

Caldwell  v.  Anderson,  104  Pa.  199 

228,  366 

v.  State,  41  Tex.  86 616 

Calhoun  v.  Jones,  2  Redf.  34 302 

Call  s.  Byram,  39  Ind.  499 600 

Calloway  v.  Witherspoon,  5  Ired. 

Eq.  128 ...724,  725 

Calumet  Electric  Street  R.  Co.  v. 

Mabie,  66  111.  App.  235-400 

Camp  v.  Camp,  18  Tex.  528 

750,  751,  754 
v.  Shaw,  52  111.  Aop.  241.  „  488 
Campbell  v.  Campbell,  130  111.  466, 

6L.  R.  A.  167 

280,281,  286,  309 
n.  Carnahan  (Ark.)  13  S.  W. 

1098 336 

v.  Hill,  23  U.  C.  C.  P.  473.. 

256.  262,  264 
v.  Ketcham,  1  Bibb.  406. .. 

724,   728 
v.  Kuhn,  45  Mich.  513,  40 

Am.  Rep.  479.. 207 


CASKS    CITED. 


XXI 


Campbell  v.  Spencer,  2  Binn.  129.  724 
v.  State,  10  Tex.  App.  560..  558 
v.  State,  23  Ala.  44.608,  609,  612 
Canfield  v.  Fairbanks,  63  Barb.  462 

267,  522 
Cannady  v.  Lynch,  27 Minn.  435.. 
583,  607,  608,  609,  611, 

615,  796 
Cannon  v.  Smalley,  L.  R.  10  Prob. 

Div.  96.. 384.  391,  455 

Card's  Will,  28  N.  Y.  S.  R.  528,  55 

Hun,  607,  mem 346 

Carew  v.  Johnson,  2  Sch.  &  Lof. 

208 9 

Carl  v.  Gabel,  120  Mo.  283 460 

Carlin  v.  Baird,  11  Ky.  L.  Rep.  932 

356,  806 
Carmichael's  Case,  36  Ala.  514 ... 

427,  511,  519,  538,  569 
Carpenter  «.  Bailey,  94  Cal.  406.. 

543,  572 
v.  Calvert,  83  111.  62.284,  285, 

332,  460,  462,  520,  594,  599 
v.  Carpenter,  8  Bush.  283.. 

253,  477,  482,  485 

v.  Carpenter,  Milw.  159 462 

v.  Com.  92  Ky.  452.682,  705,  714 

v.  Dame,  10  Ind.  125 

609,  610,  613 

v.  Hatch,  64  N.  H.  573 

492,  495,  557 

Carpenter's  Case,  79  Cal.  382 

309,  347,  559 
Estate,  94  Cal.  406.297,  299,  348 
Carr  v.  State,  96  Ga.  284.131,  450, 

455,  466,  470,  471,  489 
Carrico  v.  Neal,  1  Dana,  163..339,  364 
Carroll  v.  Norton,  3  Bradf.  291  ... 

277.  349 
Carter  v.  Dixon,  69  Ga.  82.... 299,  520 
v.  State,  56  Ga.  463.... 466,  551 
v.  State,  12  Tex.  500,  62  Am. 

Dec.  539 .131,  183, 

450,  683,  684,  707,  710 
v.  State,  87  Ala.  113... .682,  703 
Carter's  Estate,  11  Pa.  Co.  Ct.  140.  313 
Cartwright  p.  Cartwright,l  Phillim. 
Eccl.  Rep.  90...67,  242, 

371,  430,  459,  479,  481 
v.    Cartwright,  1     Phillim. 

Eccl.  Rep.  578 275 

v.  State,  8  Lea,  377.698,  699,  700 

Casat  v.  State,  40  Ark.  511 455, 

466,  682,  696,  713 
Casey  v.  People,  31  Hun,  158,  2  N. 

Y.  Crim.  Rep.  187.168,  172 
Cassedy  v.  Stockbridge,  21  Vt.  391-773 
Castner  v.  Sliker,  33  N.  J.  L.  95..  792 
Castors  Davis,  120  Ind.  231.. 390,  482 
Cathcart  v.  Sugenheimer,  18  S.  C. 

123.. ... 531 


Cauffman  v.  Long,  82  Pa.  72 312 

Caulkins  v.  Fry,  35  Conn.  170.720,  722 

Cavaness  v.  State,  43  Ark.  331 

682,  709,  713,  788 
Cavender  v.  Waddingham,  5  Mo. 

App.  457. 515,  720,  723 

Cawthorn  v.  Haynes,  24  Mo.  236..  502 
Central  R.  &Bkg.  Co.  v.  Phinazee, 

93  Ga.  488 770 

Chaffee  v.  United  States,  85  U.  S. 
18  Wall.  517,  21  L.  ed. 

908 472 

Charm's  Will,  32  Wis.  557 306 

Chambers  v.    Queen's   Proctor,  2 
Curt.  Eccl.  Rep.  415... 

319,  324,  326,  347 
Chancellor  v.    Donnell,    95    Ala. 

342 453 

Chandler  v.  Barrett,  21  La.  Ann. 
58,  99  Am.  Dec.  701... 
283,317,  327,  341,  344,  361, 
449.  536,  538,  584,  594 
v.  Ferris,  l"  Harr.  (Del.)  454 

286,  459 
Chaney  v.  Bryan,  16  Lea,  63.-293,  301 
Chapman  v.  Erie  R.  Co.  55  N.  Y. 

579 790 

v.  Republican  L.  Ins.  Co.  6 

Biss.  238 411,  412 

Charles  v.  State,  13  Tex.  App.  658-698 
Charter  Oak  Ins.  Co.  v.  Rodel,  95 
U.  S.  232,  24  L.  ed.  433 

415,  560,  599 
v.  Rodel,  95  U.  S.  285.  24  L. 

ed.  433 405,  408,  409 

Chase  v.  Lincoln,  3  Mass.  237 321 

«.  People,  40  111.  352.. .471,  473 

v.  Winans,  59  Mel.  475 

557,  562,  589,  599 

Chatham  v.  State,  92  Ala.  47 

682,  688,  689,  695 
Chattin's  Case,  16  N.  J.  Eq.  496..  424 
Cheatham  v.  Hatcher,  30  Gratt.  56, 

32  Am.  Rep.  650 

322,  323,  324,  590,  603 
Chess  v.  Chess,  1  Penr.  &  W.  32, 

21  Am.  Dec.  350 498 

Chevalier  v.  Whatlev,  12  La.  Ann. 

651 249 

Chicago  C.  R.  Co.  v.  Lewis,  5  111. 

App.  242 772 

Chicago  W.  D.  R.  Co.  v.  Mills,  91 

111.39 449,  453 

Checkering  ».  Brooks,  61  Vt.  554.. 

558,  576,  585,  587 
Children's  Aid  Soc.  v.  Loveridge, 

70  N.  Y.  387 ..308,  351,  360 
Choice  v.  State,  31  Ga.  424. ..131, 
132,  171,  182,  493,  528, 
536,  541,  558,  590,  594, 
682,  684.  685,.  709,  712,  792 


XX11 


CASES    CITED. 


Chrisman  v.  Chrisman,  16  Or.  127, 

18  Pac.  6 276,  186, 

288,  289,  309,  316,  318, 
350,  459,  461,  462,  463, 

476 -.  493 

v.  State,  54  Ark.  283 682 

Christie's  Case,  5  Paige,  242.-438,  611 
Christmas  v.  Mitchell,  3  Ired.  Eq. 

535 421,  434,  438 

Christy  v.  Clarke,  45  Barb.  529.. _ 

382,  388 
Churchill  v.  Scott,  65  Mich.  485..  260 
Cilley  v.  Cilley,  34  Me.  162. ..323, 

460,  461,  577,  601 
'Clapp  v.  Fullerton,  34  N.  Y.  190, 
90  Am.  Dec.  681... 301, 

565,  566,  5S8S  600 
Clark     *.     Caldwell,    6     Watts, 

139 435 

v.  Davis,  1  Redf.  249... 277, 

292,  329,  350 

v.  Ellis,  9  Or.  128 288, 

292,  316,  3*17,  333,  481,  483 
v.  Fisher,  1  Paige,  171,  19 

Am.  Dec.  402 288, 

289,  308,  330,  478,  481 

v.  Malpas,  31  Beav.  80 

250,  454 

v.  Morrison,  25  Pa.  455 505 

v.  Periam,  2  Atk.  337 509 

v.  Robinson,  88  111.  498....  382 
i).  Sawyer,  3  Sandf.Ch.  351.  598 
v.  State,  12  Ohio  St.  483,  40 

Am.  Dec.  481 131, 

132,  174,  555,  558,  583 
v.  State,  8  Tex.  App.  350. . 
125,  132,  135,  162,  178, 

450,  467 
v.  State,  8  Humph.  671....  683 
v.  Trail,  1  Met,  (Ky.)35... 
172,  176,  398,  399,  400, 

430,  432 
Clark's  Case,  1  City  Hall  Rec.  176, 
1  Wheeler  dim.    Cas. 

218,  note 125,  130,  178 

Case,  40  Hun,  233 498 

Clarke  v.  Dunham,  4  Denio,  262..  401 
v  Lear,  Cited  in  1  Phillim. 

Eccl.  Rep.  119 362 

v.  Sawyer,  3  Sandf.  Ch.  351, 
Reversed  in    2  N.    Y. 

498 284,  353,  375, 

484,  485,  536 
Clarkson  v.  Hanway,  2  P.  Wms. 

203 259,  260 

Clary  v.  Clary,  2  Ired.  L.  78 

558,  559,  569 
Clearwater  v.  Kimler,  43  111.  272 

265,  377 

Clearwater's  Case,  17  N.  Y.  S.  R. 

794 351 


Cleghorn  ».  New  York  C.  &  H.  R. 
R.  Co.  56  N.  Y.  44,  15 

Am.  Rep.  375. 786 

Clement  v.  Mattison.  3  Rich.  L.  93  382 
Clement's  Case,  Shelford,  Lunacy, 

92 425 

Clements  v.  McGinn  (Cal.)  33  Pac. 
920. ._ .9,  309,  459,  475, 

476,  507,  607,  609,  611 

Cleveland®.  State,  86  Ala.  1 695 

Clifton  v.   Clifton,  43  N.  J.  Eq. 

315 290 

v.  Clifton,  47  N.  J.  Eq.  227 

288,  289,  560,  562,  597,  599 
v.  Davis,  1  Pars.   Sel.  Eq. 

Cas.  31 719,  730 

Clineo.  Lindsey,  110  Ind.  337... 

310,  598 
v.  State,  43  Ohio  St,  332. .. 

683,  687,  688,  706 

Cline's  Will,  24  Or.  175 300,  341 

Clinton  v.  Estes,  20  Ark.  216 

491,  1067 
Clore  v.  State,  26  Tex.  App.  624. . 

683,  698,  716 
Clough  v.  Levy,  People,  71  Cal. 

618 573 

Cluck  «.  State,  40  Ind.  263 

125,  682,  700 
Clutch  v.  Clutch,  1  N.  J.  Eq.  474.  754 

Coates  v.  State,  50  Ark.  330 466 

Cochran  v.  Amsden,  104  Ind.  282 

424,  441,  442 
Cochran's  Will,  1  T.  B.  Mon.  246, 

15  Am.  Dec.  116.  .483,  780 
Cockell  v.  Taylor,  15  Beav.  115...  250 
Cockeram    v.    Cockeram,   17    111. 

App.  604 498 

Cockraft  ».    Rawles,   4  Notes  of 

Cases,  237 368 

Cockrill  v.  Cox,  65  Tex.  676 

284,  559,  584 
Cocks  v.  Purday,  2  Car.  &  K.  270.  606 
Coffee  v.   State,  3  Yerg.  283,  24 

Am.  Dec.  570 472 

Coffey*.  Home  L.  Ins.  Co.  44  How. 

Pr.  481.-.. 416 

Coff man's  Will,  12  Iowa,  491. ...  459 
Coghlan  «.   Coghlan,  Cited  in   1 

Phillim.  120..324,  325,  336 
Coghlan's  Case,  Cited  in  19  Ves. 

Jr.  508 371 

Cohn  v.  Cohn,  85  Cal.  108 394 

Coit®.  Patchen,  77  N.  Y.  533..-. 

299,  300,  343 
Colbath  v.  State,  4  Tex.  App.  76. . 

683,  698 
Colby  v.  Jackson,  12  N.  H.  526..  444 
Cole  v.  Cole.  5  Sneed,  57,  70  Am. 

Dec.  275 

382,  383,  384,  385,  387 


CASKS    OITKD. 


XX  111 


Cole  v.  Robins,  Bull.  N.  P.  112... 

719,  720 
Cole's  Trial,  7  Abb.  Pr.  N.  S.  321 . . 
127,  133,  172,  185,  187, 

191,  513,  519 

Will,  49  Wis.  179 361, 

452,  459,  463,  464,  476 
Colee  v.  State,  75  Ind.  513....  182, 

560.  573,  576.  599.  682 
Coleman  v.  Com.  25  Gratt.  865.  18 

Am.  Rep.  711 607,  612 

■o.  Frazer,  3  Bush.  300 248 

v.  Robertson,  17  Ala.  84... 

283,  284,  330,  331 
Coleman's  Case,  111  N.  Y.  220. .. 

309,  601 
Colgate's  Estate,  5  W.  N.  C.  170..  312 

Colhoun  v.  Jones,  2  Redf.  34 335 

Collier  v.    Simpson,    5  Car.  &  P. 

74 606 

Collins  v.  Brazill,  63  Iowa,  432... 

276  333 
v.  Osborn,  34  N.  J.  Eq.51ll  332 
v.  Townley,  21  N.  J.   Eq. 

353  349 

Collins's  Case,  18N.  J.Eq.  253..I 

422,  423,  424,  427 
Colvin  v.  Warford,  20  Md.  357... 

492,  501,  506,  530,  603 
Colvin's  Estate,  3  Md.  Ch.  278  ...  424 
Combs's  Appeal,  105  Pa.  155.. 312,  342 
Com.  v.  Bakeman,  131  Mass.  577, 

41  Am.  Rep.  248 718 

v.  Baker,  11  Phila.  631 

683,  (394,  698,  712 
v.  Baranski,  36  Pittsb.  L.  J. 

363 200 

v.  Bezek,  168  Pa.  603 

134,  456,  465,  466,  467 
v.  Braley,  1  Mass.  103... 93,  192 
v.  Brayman,  136  Mass.  438. 

514,  536,  546,  565 

i).  Buccieri,  153  Pa.  535 

183,  184,  189,  190,  200, 
523,  524,  550,  571,  573, 
616,  1057,  1058,  1065, 

1066,  1067,  1069 
v.  Cleary,  148  Pa.  26. ..128, 

187,  188,  524,  683,  698 
v.  Cleary,  135  Pa.  64,  8  L. 

R.  A.  301. 782 

v.  Cloonen,  151  Pa.  605 782 

v.  Coughlin,  123  Mass.  437.  661 
«.  Crozier,  1  Brewst.   (Pa.) 

349 ....699,  709,  711 

v  Curry,  150  Mass.  509 789 

».  Dougherty,     1     Browne 

(Pa.)  Appx.  xviii 683 

v.  Eddy,  7  Gray,  583 

456,  457.  466,  469 
«.  Fairbanks,  2  Allen,  511..  564 


Com. 


Farkin.2  Pa.  L.  J.  475.. 

127.  128,  180,  184,  L83 
Farkin,  3  Pa.  L.  J.  480 

450,  456,  467 
Freetb,  5  Pa.  L.  J.  445.. 

131.  166,  169,  173,  175 
French.  Thacher,   Crim. 

Cas.  163 ....674,   711 

Freth,  3  Phila.  105. 17:; 

Fritch,  6  Pa.  Co.  Ct.  164.   177 

Gerade,  145  Pa.  289 

468,  469,  472,  558,  569 

Gilbert,  165  Mass.  45 

682,  6S6,  708 
Haggerty,  4  Clark  (Pa.) 

187 605 

Hart,  2  Brewst.  (Pa.)  546 
666,  683,  686.  687, 

698.  777,  780 
Haskell,   Phila.  Leg.  Int. 

(Dec.  4,  1868) 174 

Haskell,  2  Brewst.  491...  149 

Hawkins,  3  Gray,  463 702 

Heath,  11  Gray,  303 

450,  458,  467,  469,  472 
Howe,  9  Gray,  110. ..673,  791 
Hughes,  133  Mass.  496. . . 

273,  782 

Jones,  1  Leigh.  598 

133,  175,  683 

Kirkbride.  7  Phila.  8 446 

Knepley  (1850)  Pa. 148 

Lynch,  3  Pittsb.  205 470 

Lynch,  3  Pittsb.  412 

450,  456,  467 
McAnany,  3  Brewst.  (Pa.) 

292 720 

McCaulley,  16  Phila.  502 

135,  165,  467 
McKie,  lGrav.61,61  Am. 

Dec.  410-... 458,  472 

McNamee,  112  Mass.  285 

764,  765 

Malone,  114  Mass.  295 

682,  703 
Meredith,  17  Phila.  90, 14 

W.  N.  C.  188 128, 

129,  165,  167,  187.  188, 

423,  424.  425,  426 

Moore,  2  Pittsb.  502 131 

Mosler,  4  Pa.  256 166 

Mosler,  4  Pa.  264 99, 

128,  148,  169,  172,  175, 

176,  183.  495 
Moss,  6  Kulp,  31  ....456,  528 
Perrier,  3  Phila. 229.. 683,  698 

Piatt,  11  Phila.  421 

134,  174,  698,  701,  710 
Porueroy,  117  Muss.  143. . 

490,  493,  494,  510 
Reeves,  140  Pa.  258.-423.  425 


XXIV 


CASES    CITED. 


Com.  x.  Reynolds,  Cited  in  10  Al- 
len, 64.. 607,  609,  613 

v.  Rich,  14  Gray,  335. ..549,  583 
v.  Rogers.    7    Met.    500,   41 

Am. Dec.  458. 

15,99,117,126,131,132, 
138,  146,  149,  169,  172, 
466,  467,  469,  536,  540, 

545,  585 

v.  Say  res,  12  Phil  a.  553 

131,  132,  166,  450,  456,  467 

v.  Slack,  90  Mich.  448 783 

v.  Smith,  15  Phila.  Leg.  Int. 

33 128 

v.  Spink,  137  Pa.  255 446 

v.  Spink,  27  W.  N.  C.  37. .. 

430,  531 

v.  Werling.  164  Pa.  559 

126,  133,  165,  176,  450, 

456.  465,  466,  788 
v.  Whitney,  11  Cush.  477...  808 

v.  Wilson,  1  Gray,  339 

520,  564,  606 
v.  Winnemore,     1     Brewst. 

(Pa.)  356 130,  166, 

169,  174,  196,  456.  470, 

478,  527,  1057,  1065 
v.  Woodley,  166  Pa.  463.... 

450,  466 
Commonwealth  Title  Ins.  &  T.  Co. 
v.  Gray,  150  Pa.  255. .. 

570,  584,  600 
Comstock  v.  Hadlyme  Eccl.  Soc. 
8  Conn.    254,   20   Am. 
Dec.  100..283,  460,  461, 

463,  464,  498,  499 
Comstock's  Case,  26  N.  Y.  S.  R. 

292 337 

Conant  v.  Jackson,  16  Vt.  335.726,  777 
Concord  v.   Rumney,    45   N.    H. 

423 384 

Conely  v.  McDonald,  40  Mich.  150 

318,  346.  492,  493,  512,   552 

Conley  v.  Com.  98  Ky.  125. 

682.  685.  688 
v.  Nailor,  118  U.  S.  127,  30 

L.  ed.  112 259 

Connecticut.   Mut.  L.  Ins.   Co.  v. 
Aikens,  150   U.  S.  468, 

37  L.  ed.  1148 408 

v.  Groom,  86  Pa.  96,  27  Am. 

Rep.  689 408 

v.  Lathrop,   111  U.  S.  612, 

28  L.  ed.  536. 560 

Connelly  «.  Fisher,  3  Tenn.   Ch. 

382 248 

Conner  v.  Stanley,  67  Cal.  315.. ..  580 

Connor's  Case,  110  Cal.  408 757 

Will,  7  N.  Y.  Supp.  855  ...  354 
Conover's  Case,  28  N.  J.  Eq.  330. . 

420,  423 


Continental    L.    Ins.    Co.    v.  Del- 

peuch,  82  Pa.  225 418 

Converse  «.  Converse,  21  Vt.  168, 

52  Am.  Dec.  58 

284,  285,   289 

Convey's  Will,  52  Iowa,  197 

276,286,  287 

Conway  v.  State,  118  Ind.  482 

126,  130,  174 

v.  Vizzard,  122  Ind.  266 

277,  286,  330,  331,  336 

Cook  v.  Cook,  53  Barb.  180 

393,438,  478 
v.  Territory,  3  Wyo.  110... 

695,  700 

Cook's  Case,  25  K  Y.  S.  R.  64 438 

Estate,  16  Phila.  322.. .323,  333 

41  Phila.  Leg.  Int.  6 323 

Estates.  Clay  worth,  18  Ves. 

Jr.  12..719,724, 725, 729,  731 

*.  Turner,  15  Sim.  611 531 

Coon  v.  Cook,  6  Ind.  268 419 

Coop's  Will.  24  N.  Y.  S.  R.  417. .  357 
Cooper  v.  Massachusetts    Mut.  L. 
Ins.  Co.  102  Mass.  227, 

3  Am.  Rep.  451 407 

Cope's  Case,  19  Phila.  569,  7  Co. 

Ct.  406_ -.423,  425,  426,  427 
Copeland  v.  Copeland,  32  Ala.  512-463 
Corbit  v.  Smith,   7  Iowa,    60,    71 

Am.  Dec.  431 251, 

257,  477,  478,  482,  484 
Cordrey  v.  Cordrey,  1  Houst.  (Del.) 

269 286,288,  289,  451 

Cornelius  v.  Cornelius,  7  Jones,  L. 

593 286,  320 

Cornwell  v.  Riker,  2  Dem.  354 

274,  275.  287,  349,  544 
v.  State,  Mart.  &  Y.  147  ... 

683,  709 

Cory  v.  Cory,  1  Ves.  Jr.  19.. 722 

CoryTs  Case,  N.  H 150 

Coryell  v.  Stone,  62  Ind.  307 

505,  506,  537,  584 
Cottell  v.  State,  12  Ohio  C.  C.  467, 

5  Ohio  Dec.  472 

163,  166,  456,  466 
Cotterell  v.  Dutton,  4  Taunt.  826..  400 
Cotton  v.  Ulmer,   45   Ala.  378,   6 

Am.  Rep.  703.293,  297,  459 
Couch  v.  Eastham,  29  W.  Va.  784 

331    333 

v.  Gentry,  113  Mo.  248 '. 

288,290,  291 
Coughlin  v.  Poulson,  2  MacArth. 

308 527 

Coursey  v.  Coursey,  60  111.  186...  754 
Covenhaven's  Case,  1  N.  J.  Eq.  27-438 
Cowan  v.  Cowan.  139  Mass.  377..  396 
Cowee  v.  Cornell,  75  N.  Y.  91,  31 

Am.  Rep.  428 249,  451 


CASES    CITED. 


XXV 


Cowles  v.  Merchant,  140  Mass.  377-504 

Cox  v.  Cox,  4  Sneed.  87 459 

Coylev.  Com.  104  Pa.  117...  536, 

538,  451,  585 
v.  Com.  100  Pa.  573,  45  Am. 

Rep.  397.. ...175, 

186,  450,  456.  466,  468 
Craddock    v.   Cabiness,    1    Swan, 

474 258,  259 

Cragg  v.  Holme,  Cited  in  18  Ves. 

Jr.  14 723 

Craia:  v.  Felaud,  4  T.  B.  Mori.  232-440 
Cram  v.  Cram,  33  Vt.  15.  .558,  559,  584 
Cramer  v.    Burlinston,    42   Iowa, 

315.... "..771,  775.  778,  781 
v.  Crumbaugh,  3  Md.  491.. 

335,  366.  460.  462 
Crandal  v.  Accident   Ins.  Co.  27 

Fed.  Rep.  40.... -  413 

Crane  v.  Conklin,  1  N.  J.  Eq.  346, 

22  Am.  Dec.  519_   .724. 

725,726,  731 
Crank  v.  Frith,  2  Moody  &  R.  262, 

9  Car.  &P.  197 602 

Cranmer,  Ex  parte,  12  Ves.  Jr.  445 

421,422,  423 
Cravens  v.  Faulconer,  28  Mo.  21.. 

460,  463 
Crawford  v.  Hoeft,  58 Mich.  1.259,  519 
v.  Thompson.  161  111.  161..  402 
Creagh  v.  Blord,  2  Jones  &  L.  509, 

8Ir.  Eq.  434 242 

253,  266,  532,  533 
Creely  v.  Ostrander,  3  Bradf.  107 

276,  350 
Crew  v.  St.  Louis,  K.  &  N.  W.  R. 

Co.  20  Fed.  Rep.  87...  781 
v.  State  (Tex.   Crim.  App.) 

23  S.  W.  14 683,  707 

Crews  v.  State,  34 Tex.  Crim.  Rep. 

533 179 

Crichton  v.  Crichton,  73  Wis.  59 

750,  753 
Crippen  v.  Culver,  13  Barb.  428..  401 

Crocker  v.  Chase,  57  Vt.  413 

499,  500,  520,  521 

Crockett  ».  Davis,  81  Md.  134 

356,  538,  591 
Croft  v.  Day,  1  Curt.  Eccl.   Rep. 

782  365 

Crolins  v.  Stark," 7"Lai)s"3li".".27^  280 

v.  Stark,  64  Barb.  112 592 

Croppe.  Cropp,  88  Va.  753 454 

Crosby  v.  People,  137  111.3^5 

682,  688,  706 

Cross®.  State,  55  Wis.  261 

698,  703,  704,  705 

Cross's  Case,  2  Ch.  Sent.  283 611 

Crosswell  v.  People,  13  Mich.  427.  202 

■D.  People,  13  Mich.  426.201.  202 

Crow  v.  Meyersieck,  88  Mo.  411..  401 


Crowe  v.  Peters,  63  Mo.  429.  557,  580 
Crowell  v.  Kirk,  3  Dev,  L  855  600 
Crowninshield  v.    Crowninshield, 

2  Gray,  524 227, 

320,  460,  461 
Crowthers  v.  Rowlandson,  27  Cal, 

376.. 263.  399 

Cruise  v.  Christopher,  5  Dana,  181 

249,  250,  725 
Crum®.  Thornley,  47  111.  192.... 

375,  377,  388,  516 
Crump  v.  Morgan,  3  Ired.  Eq.  91, 

40  Am.  Dec.  447 382 

Cubbagett.  Cubbage,  1  Harr.  (Del.) 

461,  note. ...478,  481 

Culver  v.  Haslam,  7  Barb.  314 

559,  561,  597 
Cummings  v.  Henry,  10  Ind.  109 

709  722    723 
Cundy  v.  Le  Cocq.  53  L.  J.  M.  c! 

N.  S.  125. 660 

Cuneov.  Bessoni,  63  lnd.  524. .428,  595 
Cunningham  v  State,  56  Miss.  269, 

21  Am. Rep.  360 130, 

169,  171,  172,  179,  458, 

465,  472,  473 

Currie  «.  Child,  3  Campb.  283 615 

v.  Currie,  24  Can.  S.  C.  712.  464 

Curry  v.  Bratney,  29  lnd.  195 496 

».  Com.  2  Bush,  67 682 

v.  Curry,   1   Wilson,  Super. 

Ct.  (Ind.)  236 391 

Curtis  v.  Brownell,  42  Mich.  165 

26S,  270 

v.  Hall,  4KJ.L  361.. 725,  783 

Cuthbertson's  Appeal.  97  Pa.  163..  366 

Cutler  a.  Zollinger,  117  Mo.  92 

165,  251,  253,  256,  257,  263 


D. 


Dacey  v.  People,  116  111.  555 

176.  471,  474 
Dale's  Appeal,  57  Conn.  127... .. 
318,  346,  492,  494,  503, 

504,  505 
Daly  v.   John   Hancock  Mut.  L. 
Ins.  Co.  (Ind.)  8  Ins.  L. 

J.  319 ..  759 

Dammaree's  Case,  15  How.  St.  Tr. 

522 684 

Danforth  v.  State,  75  Ga.  614,  58 

Am.  Rep.  480 194, 

450,  455,  466 

Daniel  v.  Daniel,  39  Pa.  191 

280,  288,  582,  584 

Darby  v.  Hayford,  56  Me.  246 

251,  253,  254 
Darley  v.  Darley,  3  Bradf.  481. ..  368 


XXVI 


CASES    CITED. 


Darling  v.  Bennet,  8  Mass.  129. .. 

421,  425,  427 
Darnell  v.  Rowland,  30  Ind.  342.. 

247,  271 
Daviess.  Cooper,  5Myl.  &C.  276.  250 
v.  Grindley,  Shelford,  Lun- 
acy, 266 253 

Davis  v.  Calvert,  5  Gill.  &  J.  269, 

25  Am.  Deo.  282 

283,  315,  380.  331,  492,  505 
v.  Culver,  13  How.  Pr.  68..  277 

v.  Lane,  10  N.  H.  156 381 

v.  Latta,  93  Iowa,  811.-318,  319 
v.  Merrill,  47  X.  H.  20S._..  444 
t.  Oregon  &  C.  R.  Co.  8  Or. 

172. 770 

v.  Phillips,  85  Mich.  198___ 

243,  244 
a.  State,  35  Ind.  496,  9  Am. 

Rep.  760 543,  555 

v.  State,  38  Md.  15 (Oi 

fl.  State,  25  Ohio  St.  369__.  7t#i 

v.  Tarver,  65  Ala.  98 568 

®.  United  States,  165  U.   S. 

373,  41  L.  ed.750 

134,  173,  551,  585 
v.  United  Slates,  160  U.  S. 

469,  40L.ed.499 

450.  456,  457.  458,  472,  473 
Davren  v.   White,  42  X.    J.    £q. 

569 251,  253 

Dawson  v.  Dawson,  23  Mo.  App. 

169 744,  808 

v.  State,  16  Ind.  428,79  Am. 

Dec.  439.682,  688,  782,  787 

Day  v.  Seeley,  17  Vt.  542 253, 

258.  272,  453 
De  Alberts  v.  State,  34  Tex.  Crim. 

Rep.  508 710,  712,  716 

Dean    v.  American   Mut.  L.  Ins. 

Co.  4  Allen,  96 407 

v.  Dean,  27  Yt.  746 452,  459 

«.  Fuller,  40  Pa.  474 602 

Deans  v.  Wilmington  &  W.  R.  Co. 

107  N.  C.  686 776 

Dearmond  v.   Dearmond,  12  Ind. 

455 449,  451 

Deas  v.  Wandell,  3  Thomp.  &  C. 

128 335 

De  Gogorza  v.  Knickerbocker  L. 

Ins.  Co.  65  N.  Y.  232..  411 
De  Haven's  Appeal,  75  Pa.  337. ..  312 

Deitz's  Case,  41  X.  J.  Eq.  284 

331,  333 

Dejarnette  v.  Com.  75  Ya.  867 

163,  166,  171,  176,  179, 

467,  469.  550,  554 

Delafield  v.  Parish,  25  N.  Y.  9 

280,  374,  449.  451,  453, 

461,  462,  476 
v.  Weckerlv,  19  Mich.4S2_.  291 


Delaney  v.  Selina,  34  Kan.  534 

281    289 
Delaware,    L.    &   W.    R.    Co.    v. 
Roalefs,   70  Fed.    Rep. 

22 224 

De  Lesdernier  v.  De  Lesdernier,  45 

La.  Ann.  1364 745 

Delgado  v.   State,  34  Tex.   Crim. 

Rep.  157 714,  716 

Demelt  v.  Leonard,  19  How.   Pr. 

140 401,  435,  438 

Demelt's  Case,  27  Hun,  480 438 

Den  v.  Yancleve,  5  N.  J.  L.  589  . 

461,  496,  501 
Den,  ex  dem.  Merritt,  v.  JohDson,5 

X.  J.  L.  454 275 

Denaber  v.  Clark,  10  N.  J.  L.  258, 

18  Am.  Dec.  417 430 

Denison's  Appeal,  29  Conn.  399_. 

326,  501 
Denman  v.  St.  Paul  &  D.  R.  Co. 

26  Minn.  357 774 

Dennett  v.  Dennett   44  N.  H.  531, 
84  Am.  Dec.  97. ...208, 

243.  244,  247,  253,  315 

Dennis  Elliott,  60  Tex.  337 401 

Denning  v.  Butcher,  91  Iowa,  425 
495,  559,  570,  571,  576, 

581,  588 
Dennis  v.  Dennis,  68  Conn.  186, 

34  L.  R.  A.  449 747 

v.  Union  Mut.  L.  Ins.  Co.  84 

Cal.  570 411 

v.  Weekes,  46  Ga.  514 

362,  500,  505,  526 

1).  Weekes,  51  Ga.  24 559 

Dennv  v.  Denny,  8  Allen,  311  ...  396 
'v.  Pinney,  60  Vt.   524.-452,  461 
Denson  v.  Beaz"lev,  34  Tex.  191... 

129,  282 
Denton  t.  Franklin,  9  B.  Mon.  28.  351 
Derby's  Case.  1  W.  N.  C.  212.312,  313 
Deshon    v.    Merchants'    Bank,    8 

Bosw.  461 585 

DesMoinesXat.  Bankw.Chisholm, 

71  Iowa,  675..208,  243,  251 
Devin  «.  Scott,  34  Ind.  67.... 764,  767 
Dew  v.  Clark.  1  Add.   Eccl.  Rep. 
279  (1826),  3  Add.  Eccl. 
Rep.  79...  14, 129,  156, 
158,  282,  293,  295,  301, 

345,  459 
v.  Clark,  5  Russ.  Ch.  163. ..  301 

Dewey  v.  Allgire,  37  Neb.  6 

251,  256.  273,  532 
Dewitt  t.  Barlev,  9  X.  Y.  371....  600 
v.  Barly,  17  N.  Y.   340,  13 

Barb.  550 559.  560,  580 

Dexter  v.  Hall,  82  U.  S.  15  Wall. 

9,  21  L.  ed.  73 478, 

482,  541,  542,  545,  586 


CASES    CITED. 


xxvu 


Dey's  Case.  9  N.  J.  Eq.  181.. 419,  446 

Dickeu  v.  Johnston,  7  Ga.  484 

253,  453,  477,  478.  480, 

557,  561,  575 
Dickerson  v.  Davis,  111   Ind.  433.  401 

Dickie  ».  Carter,  42  111.  37G .  493 

v.  Van  Vleck,  5  Redf.  284..  326 
Dickinson  v   Barher,  9  Mass.  225, 

6  Am.  Dec.  58.. 263,  494,  538 

v.  Buskie.  59  Wis.  136 797 

v.  Dickinson,  61  Pa.  401 

561,  573,  602 
Dickson  v.  Waldron,  135  Ind.  507, 

24  L.  R.  A.  483.... 609,  613 
Dietrich  v.  Dietrich,  4  Watts,  167, 

note 505 

Dietrick  v.  Dietrick,  5  Serg.  &  R. 

207 521 

Dillard  v.  Dillard,  2  Strobh.  L.  89.  505 
Dimes  v.  Dimes,   10  Moore  P.  C. 

422 371 

Dimick  v.  Downs,  82  111.  570.784,  792 
Dimond's  Estate,  3   Pa.  Dist.  R. 

554 .493,  737,  738 

Dinges  v.  Branson,  14  W.  Va.  100 

376,  498,  499,  502 
District  of  Columbia  v.  Armes,  107 
U.  S.  519,  27  L.  ed.  618 

607,  608.  609,  613 

Ditchburn  «.  Fearn,  6  Jur.  201 

298,  300,  303 
Ditchett  v.  Spuyten  Duyvil  &  P. 
M.  R.  Co.  5  Hun,  165.. 

770,  775 

Dodds  v.  Wilson,  3  Brev.  389 243 

v.  Wilson,  1  Tread.  448 243 

Dodge  v.    Meech,    1   Hagg.  Eccl. 

Rep.  612 338,  496 

Doe  «.  Roe,  1  Edm.  Sel.  Cas.  344.  384 
Doe,  Bainbrigge,  v.  Bainorigge,  4 

Cox,  C.  C.  454 541 

Griggs,  v.    Shana,  4  Term. 

Rep.  306 400 

Guest,  v.  Beeson,  2  Houst. 

(Del.)  246 253,  258, 

262,  449,  451,  453,  524 
Mather,  v.  Whitefoot,  8  Car. 

&  P.  270 528 

Sutton,  v.  Reagan,  5  Blackf. 

217.  33  Am.  Dec.  466..  262 
Dominick  v.  Dominick,  10  N.  Y. 

S.  R.  32 373 

v.  Dominick,  20  Abb.  N.  C. 

286 438,  506,  532 

Donegal's   Case,   2  Ves.    Sr.  4U7, 
Ves.  Sr.  Supp.  369.... 

9,  419,  422 
Donelson  v.  Posey,  13  Ala.  752... 

704.  730 
Doran  v.  McConlogue,  150  Pa.  98 

272,  561,  573 


Dorchester  o.  Dorchester,  18  N.Y. 

S.  R.  402... 269 

v.  Dorchester,  ii  N.  Y.  Supp. 

23H.   I.Yv.-r.ed  in  121  N. 

Y.   156 451.  453,    175 

Dormay    r.    Borradaile,  10  Beav. 

335. 407 

v.  Borradaile,  5  C.   B.  380, 

11  Jur.  231 406 

Dornick  v.  Reichenback,   10  Serg. 

&  It   84 ....".  230 

Dorsey  v.  Sheppard,  12  Gill.  &  J. 

192 370 

v.  Warfield,  7  Md.  65. ..561,  584 

Dotto  v.  Felzer.  9  Pa.  88 505 

Doty  v.  Hubbard,  55  Vt.  278.-255,  437 
Doughty  v.  Doughty,  7  N.  J.  Eq. 

643 244,  593,  509 

V.  Doughty,  7  N.  J.  Eq.  227.  727 
Douglass  y.Douglass,31  Iowa,  421.  393 
Douglass's  Estate.  162  Pa.  567. ..  314 

Dove  v.  State,  3  Heisk.  348 

456,  472,  555,  558 
Downer's  Case,  1  Eccl.  &  Aclm. 

106,  26  Eng.  L.  &  Eq. 

600 373 

Doyle's  Estate,  7  Pa.  Co.  Ct.  657 

276,  289,  313,   353 
Draper    v.     Kirkbride,     Com.     3 

Brewst.  393. ..430,  443,  446 
Draper's  Estate,  26  W.  N.  C.  218.  438 
Drayton,  Ex  parte,  1  Desauss.  Eq. 

144 441 

Drew  v.  Nunn,  40  L.  T.  N.  S.  676.  381 
Drinkhouses  Estate,  14Phila.291.  296 
Drummond  v.    Hopper,    4    Harr. 

(Del.)  327 ..719,  732 

Ducker  v.  Whitson,  112  N.  C.  44. 

503,  568 
Dufaur  v.  Professional  L.  Assur. 

Co.  25  Beav.  599,  4  Jur. 

N.  S.  841,  27  L.  J.  Ch. 

817 406 

Duffield  v.  Morris,  2  Harr.  (Del.) 

375 -  346 

v.   Robeson,  2   Harr.  (Del.) 

375 9,  10,241,  275, 

279,  280,  344,  371,  449. 

459,  477,  487,  737,  780 
Duggan  v.  McBreen,  78  Iowa,  591.  311 
Dulaney  v.  Green,  4  Harr.   (Del.) 

285 730 

Dumond  v.  Kiff,  7  Lans.  465 353 

Dun  v.  Amo,  14  Wis.  107 731 

Duncombe  v.   Richards,  46  Mich. 

166 259,  377,  378 

Dunham's  Appeal,  27  Conn.  192  . 

288.  298,  520,  552,  559 
Case,  15  N.  Y.  S.  K.  292 ....  337 

Dunn  v.  Dunn,  62  Cal.  176 743 

v.  Dunn,  114  Cal.  210 401 


XXV111 


CASES    CITED. 


Dunn  v.  People,  109  111.  635..174,  176 
Dunnage  v.  White,  1  Swanst.  137. 

247,  248 
Durant  v.  Ashmore,  2  Rich.  L.  184.  502 
Durham    v.    Durham,    L.    R.    10 

Prob.  &  Div.  80 384 

v.  Smith,  120  Ind.  463 

281,  310,  598 
Durling  v.  Loveland,  2  Curt.  Eccl. 

Rep.  225 369,  739 

Durnell  v.  Corfield,  8  Jur.  915.366,  369 
Duvale  v.   Duvale  (N.  J.)  34  Atl. 

888 395 

Dyce  Sombre  v.  Solaroli  (1856)  1 

Deane,  110 226 

Dyce  Sombre's  Case,  13  Jur.  857, 

1  Macn.  &  G.  116.. 442,  443 

Dye  v.  Young,  55  Iowa.  433 505 

Dyer  v.  Dyer,  87  Ind.  13.. 492 

Dvre's  Estate,  12  Phila.  156 

276,  285,  315,  430 
Dyson's  Case,  1  Lewin,  C.  C.  64..  197 


E. 


Eaglehardt  v.  State,  88  Ala.  100.. 

682,  703 
Ealing  Grove,  The,  2  Hagg.  Adm. 

15 729 

Ean  v.  Snyder,  46  Barb.  230 

280,  342,  449,  453 
Earle  v.  Norfolk  &  N.  B.  Hosiery 

Co.  36  N.  J.  Eq.  188..  253 
Eastabrook  ».  Union  Mut.  L.  Ins. 

Co.  54  Me.  224,  89  Am. 

Dec.  743 405 

Eastis  v.  Montgomery.  95  Ala.  486 

277,  288,  317,  459 
Eastwood  v.  People,  3  Park.  Crim. 

Rep.  25 696,  792 

Eaton  v.   Eaton,  37  N.  J.  L.  108, 

18  Am.  Rep.  716 253 

Eckart  v.  Fiowry,  43  Pa.  46.. 518,  569 
Eddey's  Appeal,  109  Pa.  406.. 312,  342 
Eddy's  Case,  32  N.  J.  Eq.  701....  351 
Edge  «.  Edge,  33  N.  J.Eq.  211....  737 
Edson  v.  Munsill,  10  Allen,  557. ..  531 
Edwards  v.  Davenport,  4  McCrary, 

24,  20  Fed.  Rep.  756. ..  241 
v.  Davenport,  20  Fed.  Rep. 

756 244 

Egan  v.  Dry  Dock,  E.  B.  &  B.  R. 

Co.  12App.  Div.  556. ..  606 

Egbert  v.  Egbert,  78  Pa.  326 

321,  451,  459,  525,  601 

Egeers  v.  Eggers,  57  Ind.  461 

294.  295,  549,  596 
Ekin  v.  McCracken,  11  Phila.  534 

242,  256,  267,  278,  293,  344 


Elcessor  v.  Elcessor,  146  Pa.  359. . 
261,  377,  559,  573,  575, 

584,  600 
Elder*.  State  (Ga.)  26  S.  E.  80....  180 
Elkinton   v.  Brick,  44  N.  J.  Eq. 
154,  1  L.  R.  A.  161.... 

317,  451,  459,  488,  779 
Ellars  v.  Mossbarger,  9  111.  App. 

122 263 

Elliott  v.  Grimes,  13  B.  Mon.  257.  452 
v.  Wei  by,  13  Mo.  App.  19.. 

452,  460,  461,  463,  487 
Elliott's  Will,  2  J.  J.  Marsh,  340..  276 

Ellis  v.  Bowman,  17  L.  T.  11 390 

v.  Ellis,  133  Mass.  469 564 

v.  Mathews,  19  Tex.  390,  70 

Am.  Dec.  353 247,  249 

v.  Secor,   31   Mich.  185,    18 

Am.  Rep.  178 378 

v.  State,  33  Tex.  Crim.  Rep. 

86 528,558,  561 

«.  White,  61  Iowa,  644 395 

Elmer  v.  Kechle.  1  Redf.  472 756 

Eloi  v.  Eloi,  36  La.  Ann.  563 

428,  561,  598 

Elston  e.  Jasper,  45  Tex.  409 482 

Elzey  v.  Elzey,  1  Houst.  (Del.)  308 

383,  390,  742,  743 
Emerick  v.  Emerick,  83  Iowa,  411, 

13  L.  R.  A.  757 421 

Emery  v.  Hoyt,  46  111.258 

246.  261,  434,  478,  480 
Ernes  v.  Ernes,  1  Grant,  Ch.  325..  251 

Emigu  Diehl,  76  Pa.  359 615 

English  v  Porter,  109  111.  105 252 

v.  Porter,  109  111.  285 

205.  251,  427,  451,  453,  475 
Enright  v.  Atlanta,  78  Ga.  288. ...  788 
Equitable  L.  Assur.  Soc.  v.  Pater- 
soa,  41  Ga.  338,  5  Am. 

Rep.  535 405,  763,  807 

Errickson  v.  Fields.  30  N.  J.  Eq.  634  325 
Erwin  v.  State,  10  Tex.  App.  700.. 

23,  131,  710,  711,  715 

Eskridge  v.  State,  25  Ala.  30 791 

Eslava  v.  Lepretre,  21  Ala.  504,  56 

Am.  Dec.  266 419 

Esterbrook  v.  Gardner,  2  Dem.  543-338 
Estes  v.  State,  55  Ga.  30.. 682,  690,  697 
Ethridge    v.    Bennett,    9    Houst. 

(Del.)  295 278,  286, 

449,  559,  584,  600 
Etter  v.  Armstrong,  46  Ind.  197. .  274 
Euchenberg  v.  Schneider,  Com.  59 

Pa.  328 419,  424,  425 

Evans  v.  Arnold,  52  Ga.  169. .171, 

309,  321,  322,  326,  330,  460 
v.  Heitich,  20  U.  S.  7  Wheat. 

453,  5L.  ed.  496. 608 

».  Kniuht,  1  Add.  Eccl.  Rep. 

229 329,  337,  950,  951 


CASES    CITKD. 


XXIX 


Evans  v.  Thomas,   2  Hagg.  Eccl. 

Rep.  433 241,  320 

Eveis,  Ex  parte,  29  Tex.  App.  539 

683,  716,  717 
v.  State,  31  Tex.  Crim.  Rep. 

318,  18  L.  R.  A.  421 

131,  683,  713,  716,  717 

Exum  v.  Canty,  34  Miss.  532 

2(14,  265,  336 
Eysaman  Case.  113  N.  Y.  62,  3  L. 

R.  A.  599 568 


P. 


Fahnestock  v.  State,  23  Ind.  231...  785 
Fain  v.  Com.  78  Ky.  183,  39  Am. 

Rep.  213 523,  552 

Fairchild  v.  Baseomb.  35  Vt.  398. . 

493,  512,  521,  543,  544, 

518,  549,  585,  587,  613 
Fane  v.  Devonshire,  6  Bro.  P.  C. 

137  272 

Farmer  v.  Parmer,  129  Mo.  307."  285 
Farnham  v.  Brooks,  9  Pick.  212.. 

244,  247 
Farnham's  Case  (1895)  2  Ch.  799..  402 
Farnsworth's  Will,  62  Wis.  474.. 

289,  339 
Farrell  v.  Brennan,  32  Mo.  328,  82 

Am.  Dec.  137 557,  587 

Farrer  v.  State,  2  Ohio  St.  54 

173,  176,  185,  466,  469,  470 
Farris  v.  Com.  (Ky.)  1  S.  W.  729..  173 

Fauldera.  Silk,  3  Campb.  126 

429,  531 
Faulkner  v.  Territory,   6  N.    M. 

464 456,472,  473 

Fay  v.  Burditt,  81  Ind.  435, 42  Am. 

Rep.  142..246,  451,  453,  479 
Fayette  ».  Chesterville,  77  Me.  28, 

52  Am.  Rep.  741... 397, 

548,  549,  557,  585 

Fee®.  Taylor,  83  Ky.  259. 463 

Fennell  v.  Tate.  1  Cromp.  M.  &  R. 

584 ..607,  611 

Fenton  v.  Holloway,  1  Starkie,  126-719 
Fenton's  Case  (Iowa)  66  N.  W.  99_  571 
Fentress  v.  Fentress,  7  Heisk,  428-420 
Ferguson  v.  Borrett,  1  Fost.  &  F. 

613 264 

Ferrars,  Ex  parte,  Mosely,  332 442 

Ferrell  v.  State,  43  Tex.  502 

666,  683,  686,  688,  708 
Ferrer's  Case,  19  How.  St.  Tr.  943, 

947 139,  181 

Ferris  v.  People,  35  N.  Y.  125 186 

Field  v.  Shorb,  99  Cal.  661 378 

Field  Case,  3  Curt.  Eccl.  Rep.  754-367 
Fielder  v.  Collier,  13  Ga.  496 557 


Finn's  Will,  1  Misc.  280 

Firby  v.  State,  3  Baxt.  358. 

First  Nat.  Bank  v.  Win-bach,  106 

Pa.  37,  12  W.  N.  C.  150 

263,  509,  542,  561,  574, 

575.  570.  59 1 , 

Fiscus  v.  Turner,  125  Ind.  46.423, 

Fishburnev.  Ferguson, 84  Va.  87.. 

250,  454,  479, 

Fisher  v.  People,  23  111.  283 

132.  176,  449, 

v.  State,  64  Ind.  435 

682,  709, 

v.  State,  30  Tex.  App.  502.. 

574.  687, 

Fitzgerald  v.  Shelton,  95  N.  C.  519 

v.  Weston,  52  Wis.  354...  . 

771,  773, 

Fitzgerald's  Case,  30  N.  J.  Eq.  59. 

Fitzpatrick  v.  Com.  81  Kv.  357... 

126,  127,  "134,  175. 

Flanagan  v.  People,  52  N.  Y.  467, 

11  Am.  Rep.  731 

135,  171, 
Flanders  v.  Davis,  19  N.  H.  139.. 
Flanigan  v.  Peopie.  86  N.  Y.  554, 
40  Am.  Rep.  556.. _ 683, 
Flansburgh's  Will,  82  Hun,  49... 
286.  461, 
Fleming  v.  State,  5  Humph.  564. . 

782, 
Flint's  Case.  Shelford  on  Lunacy, 

91 

Flood  v.  Martin,  People,  15  Misc. 


335 
195 


v.  Pragoff,  79  Ky.  607 

Florey  v.  Florey,  24  Ala.  241 

296,  517,  557,  569, 
Floyd  v.  Floyd,  3  Strobh.  L.  44, 

49  Am.  Dec.  626 

Fluck  v.  Rea,  51  N.  J.  Eq.  233  .. 

Fogarty  v.  State,  80  Ga.  450 

Fonville  v.  State,  91  Ala.  39 

682,  693,  710,  777,  780, 
Foot  i).    Stanton,    1   Deane  &    S. 

Eccl.  Rep.  19 355, 

v.  Tewksbury,  2  Vt.  97 

Forbes  v.  Edinburgh  L.  Assur.  Co. 
10  Shaw  &  D.  Sc.  Sess.  Cas. 

451.. 

Forbing  v.  Weber,  99  Ind.  588 

Ford  v.  Ford.  7  Humph.  92 

283,  317,  373,  459,  462, 

«.  State,  71  Ala.  385,  5  Crim. 

L.  Mag.  32...  466,  470, 

482.  562,  569,  682, 

v.  State.  73  Miss.  734,  35  L. 

R.  A.  117 457,  472 

479: 

v.   Umatilla  County,  15  Or, 

313 


505 
424 

559 

474 

713 

717 
-495 

783 
428 

188 

172 
321 

685 

470 

795 

423 

792 
463 

570 

308 
736 
171 

781 

1068 
720 


760 
373 

492 


693 

484 


XXX 


CASES    CITED. 


Format!  v.  Forman,  53  N.  Y.  S.  R. 

639 391 

v.  Smith,  7  Lans.  443 

288,  289,  595 
Forman's  Will,  54  Barb.  (N.  Y.)  27, 

1  Tucker,  205 71, 

280,  281,  2s2,  295,  306, 

307,  364,  373,  374,  461 
Forney  v.  Fen-ell,  4  W.  Va.  729..  505 
Forushill  v.  Murray,  1  Bland,  Ch. 

479 3«2 

Fossa.  Hildreth,  10  Allen.  76 788 

Foster  v.  Brooks,  6  Ga.  290.. .528,  557 

v.  Dickerson,  64  Vt.  233. .. 

320,  508,  513,  518,  537, 

540,  548,  551,  §55,  559, 

501,  573,  576,  577,  578, 

579.  588,  600,  601 

v.  Jones,  23  Ga.  168 401 

v.  Means,  1  Speer,  Eq.  569, 

42  Am.  Dec  332 

383,  385,  386,  388 

Foster's  Estate,  142  Pa.  62 312 

Fountain  v.  Brown,  38  Ala.  72 

326,  496,  511,  525.  559,  568 
Fouts  v.  State,  4  G.  Greene,  500__ 

168,  169,  174 

Fow's  Estate,  147  Pa.  264 314,  352 

Fowler  v.    Mutual  L.  Ins.  Co.  4 

Lans. 202 ..410,  418 

Fowlis   v.    Davidson,   6  Notes  of 
Cases,  461.... 293,  301, 

316,  478,  486,  488 

Fox  v.  Evans,  3  Yeates,  506 603 

v.  Pennsylvania  Mut.  L.  Ins. 
Co.  (Pa.)  4  Bigelow.Life 
&  Acci.  Ins.  Rep.  458 ..  759 
v.  Territory,  2  Wash.  Terr. 

297... 796 

Francis  v.  Wilkinson,  147  111.  370 

251,  252,  255,  285 
Francke  v.  His  Wife,  29  La.  Ann. 

302 422,  428,  429,  594 

Frank  v.  Mainwaring,  2  Beav.  115 

435.  438 

Franke  v.  Shipley,  22  Or.  104 290 

Franklin     v.    Franklin,    53   Kan. 

143 „  394 

Franks  v.  Jones,  39  Kan.  236 722 

Frary  v.  Gusha,  59  Vt.  257 

516,  520,  538 
Fraser  v.  Jennison,  42  Mich.  206.  _ 
294,  349,  499,  502,  507, 
508,  527,  530,  543,  546, 

592,  606 
Frazer  v.  Frazer,  2  Del.  Ch.  260. . 
242,  253,  330,  336,  339, 

453,  478 
Frear  v.  Williams,  7  Baxt.  550. .. 

460,  462 
Freed  v.  Brown,  55  Ind.   310 244 


Freeman  v.  Dwiggins,  2  Jones  Eq. 

162 725 

v.  Easley,  117111.  317 

227,  274,  285 
v.   Freeman,   19  Ont.    Rep. 

141 369 

v.  People,   4  Denio,    9,    47 

Am.  Dec.  216 92.93, 

133,  135,  148,  1«5,  192. 

193,  196.  197,  198,  589 
v.  Staats,  8  N.  J.  Eq.  814. .  729 
French  v.  French,  8  Ohio,  214,  31 

Am.  Rep.  441 719 

v.  State,  85  Wis.  400,  21  L. 

R.  A.  402 197 

v.  State,  93  Wis.  325 

193,  198,  498,  509.  554,  789 

Frere  v.  Peacock,  1  Rob.  442 306 

v.  Peacocke,    3  Curt.  Eccl. 

Rep.  664 358 

Frey  v.  Germania  L.  Ins.  Co.  56 

Mich.  29 411 

Fricke's   Case,  N.  Y.  Daily  Reg. 
Feb.  6,  1886  (Abb.  Dig. 

1886,  p.  377). 348 

Frieke's  Case,  47  N.  Y.  S.  R.  10.. 

297,  342 

Friery  v.  People,  54  Barb.  319 

683,  689,  697 
Frith's  Case,  22  How.  St.  Tr.  307 

192  196  537 
Fiizzel  v.  Reed.  77  Ga.  724..'.... ^.559 
Frost  v.  Wheeler,  43  N.  J.  Eq.  573 

286,  344,  806 
Frost's  Case,  22  How.  St.  Tr.  472.  684 
Frowert's  Case.  2  W.  N.  C.  588..  312 
Fry  v.  Fry,  L.  R.  15  Prob.  Div.  25, 
Aff'd  in  L.  R.  15  Prob. 

Div.  50. 427 

Fulleck  v.  Allinson,  3  Hagg.  Eccl. 

Rep.  527 298,  300, 

324,  344,  370 

Fuller  v.  Fuller,  17  Cal.  605 608 

v.  Fuller,  83  Ky.  345 605 

Fullerton  v.  Gilbert,  People,  115 

111.  59. 446 

Fulwilder  v.  Ingels,  87  Ind.  414.. 

243,  484,  598 
Furniss  v.  Mutual  L.   Ins.    Co.  14 

Jones  &S.  467 759 

Furstfl.  State,  31  Neb.  403 

131,  458,  472 
Futriel  v.  Futriel,  5  Jones,  Eq.  61.  727 

G. 

Gahagan  v.  Boston  &  L.  R.  Co.  1 
Allen,  187,  79  Am.  Dec. 
724.. 785,  793 

Gainsville  v.  Caldwell,  81  Ga.  76.. 

608,  612,  615 


CASES    CITED. 


X.XX1 


Gaitan    v.    State,    11   Tex.    App. 

544 702 

Gaither  v.  Gaither,  20  Ga.  709 287 

Oalpm  v.  Wilson,  40  Iowa,  90 247 

Gamble  v.  Gamble,  39  Barb.  373.. 

330,  333 
Gantjwere's  Estate,  14  Fa.  417,  53 

Am.  Dec.  554 383,  435 

Gannon's  Will  (C.  P.)  3  Misc.  329 

164,  292,  296 
Gardiner  v.  Gardiner,  34  N.Y.  155.  341 
v.    People,    6    Park.    Crim. 

Rep.  155 580 

Gardner  v.  Gardner.  22  Wend.  526, 

34  Am.  Dec.  340 , 

487,  488,  734,  735,  737, 

741,  778,  779,  780 

v.  Lambock,  47  Ga.  133 

282.  293,  294,  310 

Garner®.  State,  28  Fla.  113 

682,  685,  688,  697,  698, 

699,  701 .  703,  708,  709 
Garnettfl.  Garnett,  114  Mass.  379, 

19  Am.  Rep.  369_.-396,  397 
Garrison  v.  Blanton,  48  Tex.  299.. 

281,  286,  323,  557,  584 
v.  Garrison,  15  N.  J.  Eq.  266 

323,  561,  584,  604 
Gartside  v.  Isherwood,  1  Bro.  C.  C. 

590.. ...243,  247,  250 

Gass  v.  Gass,  3  Humph.  278 

303,  304,  309,  341,  459, 

462,  475,  605 

v.  Mason,  4  Sneed,  497 258 

Gates  v.  Cornett,  72  Mich.  435... 

250,  454 
v.  Meredith,  7  Ind.  440.719,  786 
Gatley's  Estate,  4  Pa.  Dist.  R.  52 

314,  355 
Gay  v.  Union  Mut.  L.  Ins.  Co.  9 

Blatch.  142__ ..407,408,  409 
Gebhart  v.  Shindle,  15  Serg.  &  R. 

235 608 

Gee  v.  Ward.  5  Week.  Rep.  579..  503 
Gehhardt  v.  Shindle,  15  Serg.  &  R. 

235 796 

Gehrkea.  State.  13  Tex.  568 581 

Genz  c.  State.  58  N.  J.  L.  482....  557 
Gerrish  v.  Nason,  22  Me.  438,  39 

Am.  Dec.  589 460,  461 

Gibbons  v.  Dunn,  46  Mich.  146... 

454,  475 

Gibson  v.  Gibson,  9  Yere.  329 

537,  538,  5577  559,  573,  601 

v.  Gibson,  24  Mo.  227 

499,  502,  790 

v.  Jeyes,  6  Ves.  Jr.  266 423 

<o.  Soper,    6  Gray,   279,   66 

Am.  Dec.  414 209, 

437,  531,  533 
Gibson's  Estate,  11  W.  N.  C.  355.  307 


Giebel  v.  State,  28  Tex.  App.  151.. 

125,  129,  132,  165,  450,  468 
Gillespie  v.  Schuliberrier,  5  Jones, 

L.  157..... 486 

Gillooley  v.  State,  58  Ind.  182.682,  696 
Giliuan  v.  Eastern  Ii.  Co.  13  Allen, 

433,  90  Am.  Dec.  210..  786 
Glass  v.  Hilliary,  1  Pa.  Dist.   R. 

621 430,  435 

Gleespin's  Will,  26  N.  J.  Eq.  523 

331,  341 
Glen,  Ex  parte,  4  Desaus,  Eq.  546.  384 
Glockner's  Case,  17  N.  Y.  S.  R. 

798   356,  806 

Goble  v.  Grant,  3  N.  J.  Eq.  029.. 

335,  459,  478,  481,  487 
Godden  v.  Burke,  35  La.  Ann.  160 

279,  288,  292,  557,  561 
Golden  v.  State,  25  Ga.  527... 682,  698 
Goldie  v.  Murray,  6  Jur.  608. .289,  326 
Golding  v.  Golding,  6  Mo.  App. 

602 744 

Goldthorp's  Case,  94  Iowa,  336... 

500,  501,  559,  577,  580 
Golliher  v.  Com.  2  Duv.  163.  87 

Am.  Dec.  493.. 688,  693,  698 
Gombault  v.  Pub.  Adm.  4  Bradf. 

226.-326,  330,  365.  371,  373 
Gonsolis  v.  Gearbart,  31  Mo.  585..  728 
Gonzales  v.  State,  31  Tex.  Crim. 

Rep.  508 716 

Goodacre  v.  Smith,  15  Week.  Rep. 

561   336,  366 

Goodell  v.  Harrington,  3  Thomp. 

&C.  34S..435,  438,  531,  534 
Goodheart  v.  Ransley,  28  Ohio  L. 

J.  227 455 

Goodman's  Trust,  44  L.  T.  527...  274 
Goodwin  v.  State.  96  Ind.  550 

125,  127,  128,  174,  175, 

180,  192,  443,  475,  477, 

488,  510,  544,  554,  558, 

560,  571,  576,  593,  596, 

682,  780,  794 
Gordon  v.  Morrow,  10  Ky.  L.  Rep. 

845 278 

Gore  v.  Gibson,  13  Mees.  &  W.  623-719 
Goshen  «.  Richmond,  4  Allen,  458-387 

Gould  v.  Crawford,  2  Pa.  89 796 

Gourlay  v.  Gourlay,  16  R.  I.  705..  743 
Grabill  v.  Barr,  5  Pa.  441,  47  Am. 

Dec.  418 451,  459,  478 

Graham  v.  Castor,  55  Ind.  559 243 

v.  Com.  16  B.  Mon.  587.173,  466 

v.  Pan  coast,  30  Pa.  89 243 

Grant  v.  Thompson.  4  Conn.  203, 

10  Am.   Dec.  119 

263,  491,  515,  557,  560 
Graves  v.  State,  45  N.  J.  L.  347, 

46  Am.  Rep.  778 

171,  450,  456,  466 


XXX11 


CASES    CITED. 


Gray  v.  Obear,  59  Ga.  675 426, 

503,  576,  600 

Gray's  Case,  1  Silv.  338 ..  342 

Grearu  Grear,  9  Gratt.  330. .376,  377 

Green  v.  Cora.  83  Pa.  75 163 

v.  State,  88  Term.  614 

194,  199,  478 

v.  Wood,  2  Vern.  636. 247 

Green's  Estate,  140  Pa.  137. 599 

Greenley  v.  State,  60  Ind.  141.450,  515 
Greenslade  v.  Dare,  20  Beav.  284. 

454,  529 
Greenwade  v.  Greenwade,  43  Md. 

313.. 420,  422,  426.  441,  442 

Greenwood  v.  Cline,  7  Or.  26 459 

d.  Greenwood,  3  Curt.  Eccl. 

Rep.  337 289,  303,  310 

Greenwood's   Case,  1   Add.  Eccl. 

Rep.  279,  note... 300 

Greer  v.  Greens,  9  Gratt.  330 258 

Gresh  v.  Tamany.  2  Kulp.  453 430 

Gresh's  Case,  12  Pa.  Co.  Ct.  295..  445 
Gridley  v.  Boggs,  62  Cal.  190..... 

434.  532,  535,  555 
Griffin  v.  Griffin,    R.   AI.   Charlt. 

(Ga.)217 .326,  330, 

478,  481,  604 
Griffith  fl.Diffenderffer,50  Md.  466  498 
v.  Frederick  County  Bank, 

6  Gill.  &  J.  424 728 

Grimani  v.  Draper,  12  Jur.  925..  486 
v.  Draper,  6  Notes  of  Cases, 

418   361,  440 

Grimes  d.  Shaw,  2  Tex.  Civ.  App. 

20 432 

Grissom  v.  State,  62  Miss.  167 

130,  163,  165,  166 
Griswold  v.  Butler,  3  Conn.  227. . 

400,  418 

v.  Miller,  15  Barb.  523 435 

Groom  v.  Thomas,  2  Hagg.  Eccl. 

Rep.  433 347,  373, 

449,  459,  462,  479,  481 

Gross  v.  State,  62  Md.  179. ..523,  1067 

Gross's  Case,  7  N.  Y.  S.  R.  739-278,  331 

Case,  14  N.  T.  S.  R.  429...  359 

Grubb  v.  State,  117  Ind.  277.  .173, 

174,  176,  179,  528,  555,  560 
Grubbs  v.  McDonald,  91  Pa.  236. . 

318,  459,  476,  493 

Gruber  v.  State,  3  W.  Va.  699 

195,  197.  198,  199 
Guagando  v.  State,  41  Tex.  626. .. 

193,  195,  196 

Guetisi-  v.  State,  63  Ind.  278 190 

x.  State,  66  Ind.  84,  32  Am. 

Rep.  99 127,  175, 

450,  471,  472,  473,  474, 

544,  545,  591,  594,  1069 
Guild  v.  Hull,  127  111.  371.... 251, 

253,  311,  449,  453 


Guild  v.  Warne,  149  111.  105 

251,  254,  453 
Guiteau's  Case,  10  Fed.  Rep.  161. 
15,  22,  99,  117,  125,  133, 
134,  165,  167,  168,  191, 

456,  472,  473,  523,   866 

Gunter  v.  State,  83  Ala.  96 

126,  167,  466,  470,  541, 
585,   595,  682,  684,  710,  856 

Gurley  v.  Butler,  83  Ind.  501 756 

Guthrie  v.  Guthrie,  84  Iowa,  372. 

423,  426 
Gwatkin  v.  Com.  9  Leigh,  678,  30 

Am.  Dec.  264.. 703 


Hacker's  Appeal,  121  Pa.  204,  1  L. 

R.  A.  861... 82 

Hadfield's  Case,  27  How.   St.  Tr. 

1281 125,129, 

138.  139,  154,  159,  467 
Hadward  v.  Campbell,  186  Pa.  365-250 

Hagan  v.  State,  5  Baxt.  615 527 

Hageman  v.  Hageman,  129  111.  164-84 
Haile  v.  State,  11  Humph.  154.698,  699 
Haines  v.  Hayden,  95  Mich.  332.. 

294,  348,  499,  511,  512 

Halea.  Brown,  11  Ala.  87 

243.  259,  726 

v.  Hills,  8  Conn.  39. ... 252 

v.  Stery,  7  Colo.  App.  165..  719 

Hall  v.  Com.  22  W.  N.  C.  25 

168,  174,  175,  180,  456, 
528.  551,  555,  1066,  1069 
v.  Com.  (Pa.)  11  Cent.  Rep. 

183 606,  616 

<o.  Hall,  38  Ala.  131.... 233,  299 

v.  Hall,  18  Ga.  40 288,  289 

v.  Hall,  3  Swab.  &  T.  349.. 

392    394 

v.  Hall.  17  Pick.  373 _'  516 

v.  Knappenberger  (Mo.)  12 

West,  410 243 

v.  Moreman,  3  McCord,  L. 

477 724 

v.  O'Mallev,  49  Tex.  70 784 

v.  Perry,  87  Me.  569 

460,  537.  587 
v.  State,  31  Tex.  Crim.  Rep. 

565 512,  715,  717 

«.  Unger,  2  Abb.  (U.  S.)507 

253,  255,  453,  478,  482 
«.  Warren,  9  Ves.  Jr.  606.. 

370.  429,  438 
Hall's  Case,  2  City  Hall  Rec.  85..  183 

Halley  v.  Webster,  21  Me.  461 

231,  478,  481,  482,  525,  770 
Hamaker  v.  Hamaker,  18  111.  137, 

45  Am.  Dec.  705 392 


CASES    CITED. 


XXX 1U 


Hamblett  v.  Hamblett,  6  N.  II.  333 

564, 
Hamilton  v.  Hamilton,  10  R.  I.  538 

430, 

Hamilton's  Estate,  4  Pa.  Dist.  R. 

161, 16  Pa.  Co.  Ct.  492. 

Hammond  v.  Dike,  42  Minn.  273. 

495, 
Hampton  v.  Westcott,  49  N.  J.  Eq. 

522 277,  288, 

v.  Westcott,  49  N.  J.  Eq.  689- 

Hamrick  v.  State,  134  Ind.  324.. 

423,  424,  557, 

Hanberger  v.  Root,  6  Watts  &  S. 

434 

Hanbury?).  Hanbury  (1892)  P.  222. 
Hancock  v.  Peatv,  L.  R.  1  Prob. 

&  Div"  335 

Hand  v.  Burrows,  23  Hun,  330... 
Handley  v.  Jones,  Cited  in  7  Ad. 

&E1.  337 

v.  Stacey,  1  Fost,  &  P.  574.. 

736, 

Haneklan  v  Folchlin,  57  Mo.  App. 

602 

Haney  v.  Clark,  65  Tex.  93... 557, 
Hankinson  v.  Charlotte  C.  &  A. 

R.  Co.  41  S.  C.  1 

Hanna  v.  Read,  102  111.  596, 40  Am. 

Rep.  608 

Hannum's  Appeal,  9  Pa.  471 

Hansell  v.  Hansell,  3  Pa.  Dist.  R. 

724.. ....393, 

Hanveya.  State,  68  Ga.  612.. 682, 
Harbison  v.  Lemon,  3  Blackf.  51, 

23  Am.  Dec.  376 

719,  720,  730, 
Harden  v.  Hay3,  14  Bradf.  138. .. 

v.  Hays,  9  Pa.  151 263, 

321,  324,  372,  478,  481, 

Harding   v.  Handy,    24  U.  S.   11 

Wheat.    103,    6   L.    ed. 

429 258,  259, 

Hardy  v.  Merrill,  56  N.  H.  227,  22 

Am.  Rep.  441.460,  559, 

Harmon  v.  Harmon,  51  Fed.  Rep. 

113 

v.  Harmon,  16  111.  85.. 750, 
Harmony  Lodge  I.  O.  O.  F.'s  Ap- 
peal, 127  Pa.  269 

Harper  v.  Harper,  1  Thomp.  &  C. 

351 312,  459,  592, 

Harper's  Will,  4  Bibb,  244 

Harrel  v.  Harrel,  1  Duv.  203 

Harring  v.  Allen,  25  Mich.  505 

498,  499, 

Harris  v.  Berrall,  1  Swab.  &  T.  153 

«.  Betson,  28  K  J.  Eq.  213. 

v.  Ingleden.  3  P.  Wms.  91  . 

v.  State,  18  Tex.  App.  287. . 

177,  537,  558, 


600 
512 


313 

501 

290 

■289 

586 

505 
394 

384 
610 

508 

737 

722 
567 

771 


535 

758 

394 

687 


777 
501 

603 


263 

564 

244 
754 

735 

598 
600 
331 

500 
375 
350 
461 


597 


Harris®.  United  States,  8  App.  D. 

C.  20 682,  687 

v.  Wamsley,  41  Iowa,  071.. 

243,  2  17 
Harris's  Case  (Del.)  28  Atl.  329...  419 
Harrison  v.  Bishop,  131  Ind.  161 .. 

432.  481,  486 
v.  Rowan,  3  Wash.    C.    C. 
580.. 227,  284,  289,  317, 
320,  323,  462,  559,  593,  599 
Harrod  v.  Harrod,  1  Kay  &  J.  4, 

18Jur.  853 385,386, 

389,  390,  452,  455,  608 

Hart  v.  Deamer,  6  Wend.  497 

430,  438,  531 
v.  State,  14  Neb.  572... 131,  172 
v.  Thompson,  15  Ga.  88  ...  779 
Hartford  v.  Palmer,  16  Johns.  143 

608,  795 
Hartwell  v.    McMaster,    4    Redf. 

393 344 

Harvev  v.  Sullens,  46  Mo.  147,  2 

Am.  Rep.  491 284,  365 

v.  Sullens,  56  Mo.  372.. 285,  434 
Harwood  v.  Baker,  3  Moore,  P.  C. 

282 289,  358 

Haskell  v.  Haskell,  Com.  2Brewst. 
491.. 422,  423.  427,  428, 

429,  453,  518,  527,  534 

v.  Haskell,  54  Cal.  262 749 

v.  Kirkbride,  3  Brewst.  586.  445 
Hastings  v.  Rider,  99  Mass.  622... 

547,  564,  584,  589 

Hastings's  Case 865,  867 

Hathawav  v.  National  L.  Ins.  Co. 

"  48  Vt.  336.405,407,409, 

415,  417,  542,  543,  544, 

547,  558,  560,  589 
Hathorn  v.  King,  8  Mass.   371,   5 

Am.  Dec.  106 276, 

537  538  547 
Haviland  v.  Hayes,  37  N.  Y.'25..'  268 
Haviland's  Case,  1  W.  N.  C.  345.  766 
Hawefl.  State,  11  Neb.  537,  38  Am. 

Rep.  375.. 127,  129 

Hawkins  v.  Bone,  4  Fost.  &  F. 

311 719 

v.  Grimes,  13  B.  Mon.  257.. 
324,  452,  460,  461,  476, 

477,  481,  531 
Hawley  v.  Howell,  60  Iowa,  79...  722 

Hayt>.  Miller,  48  Neb.  156 

251,  256,  557 
Haydock  v.  Haydock,  34  N.  J.  Eq. 
570,  38  Am.  Rep.  385.. 

250,  452 

Hayes  v.  Burkham,  67  Ind.  359..  505 

v.  Huff  stater,  65  Barb.  530.  722 

v.  West,  37  Ind.  21... 502 

Haynes  v.  Swann,  6  Heisk.  560. .. 

447,  478,  486 


3a 


XXXIV 


CASES    CITED. 


Hays  v.  Com.  (Ky.)  33  S.  W.  1104 

130,  133 
Hayward  v.  Hayward,  1  Swab.  & 

T.  81 394 

Hazlitt's  Will,  35  Pitts.  L.  J.  503.  367 
Hazzard's  Estate,  7  Pa.  Co.  Ct.  56.  312 
Healey  v.  New  York,  3  Hun,  708, 

6  Thomp.  &  C.  92.770,  775 

Heard  v.  Sack,  81  Mo.  610.. 401 

Hebert  v.  Winn,  24  La.  Ann.  385.. 

333,  733,  734,  778 

Heenan's  Estate,  15  Pbila.  545 485 

Hegney».  Head,  126  Mo.  619 464 

Heister  v.  Lyncb,  1  Yates,  108  ...  452 

Helad  v.  Tbing,  45  Me.  392 552 

Helmbold  v.  Kirkbride,  Com.   11 
Pbila.  427.. ..446,  447, 

452  475  593 
Helmbold's  Case,  12  Pbila.  424..'  442 
Hemingway  v.  Coleman,  49  Conn. 

390,  44  Am.  Dec.  243..  243 
Hempbill   v.    Holford,    88  Micb. 

293 265 

Henderson  v.  Hays,  2  Watts,  148.  724 
v.  McGregor,  30  Wis.  78.  . 

259,  423 
Hendrix  v.  Money,  1  Bush,  306.. 

263,  524,  593 

Henrizi  i\  Kebr,  90  Wis.  344 255 

Henry  v.  Brothers,  48  Pa.  70 535 

v.  Fine,  23  Ark.  417 515 

v.  Hall,  106  Ala.  84 452 

v.  Ritenour,  31  Ind.  136 

720,  721 

v.  State,  33  Ga.  441... 682 

Henry's  Will,  18  Misc.  149..  .276, 

288,  289,  295,  296 
Henslie  v.  State,  3  Heisk.  202.177,  691 

Herbert  v.  Berrier,  81  Ind.  1 

449.  451,  460 
Hernandez  v.  State,  32  Tex.  Crim. 

Rep.  271 690,  705 

Herster  v.  Herster,  122  Pa.  239... 

307,  312,  363,  498,  500 
Hewlett  v.  Wood,  55  N.  Y.  634- . 

564,  566 
Hey  ward  v.  Hazard,  1  Bay,  335. .  321 
Hiatt  v.  Mutual  L.  Ins.  Co.  2  Dill. 

572,  nole 408,  616 

Hickman  v.    Hickman,   1   Wash. 

257 .-  392 

v.  State,  38  Tex.  190 567 

Hicks  v.  Marshall,  8  Hun,  327.. . 

.   435,  440 

Hiett  v.  Shull,  36  W.  Va.  561 

8,  245,  449,  453,  598,  607 
Higgins  v.  Carlton,  28  Md.  115,  92 

Am.  Dec.  666 276, 

283,  323,  331,  449,  451, 
452,  459,  462,  478,  481, 

579,  581 


Higbt  v.  Wilson.  1  U.  S.  1  Dall. 

94,  1  L.  ed.  51 733 

Hiler  v.  State,  4  Blackf.  552 471 

Hill  v.  Day,  34  N.  J.  Eq.  150 

244,  381,  430 
v.  Hill,  27  K  J.  Eq.  214.. 

392    393 

v.  Horton,  4  Dem.  90 1  763 

v.  McLaurin,  28  Miss.  288..  245 
v.  Nash,  41  Me.  585,  66  Am. 

Dec.  266 309,  311,  332 

v.  State,  64  Ga.  463... 170 

v.  State,  42  Neb.  503 

698,  709,  710 
Hill's  Case,  31  N.  J.  Eq.  203.423,  426 

Hills  v.  Mills,  1  Salk.  36 219 

Hincbmau    v.    Richie,    Brightly, 

143 445 

Hirsch  v.  Trainer,  3  Abb.   N.   C. 

274 255,  438 

Hite  v.  Com.  14  Ky.  L.  Rep.  308..  573 

v.  Sims,  94  Ind.  333 

125,  303,  472 
Hix®.  Whittemore,  4  Met.  545...  483 

Hoag's  Case,  7  Paige,  312.. 766 

Hoard  v.  State,  15  Lea,  318 

188,  457,  466,  609,  714 
Hoban  v.  Campau,  52  Mich.  346-- 

285,  307,  319,  a5& 
Hoblyn's  Case,  29  L.  T.  305.. 419,  427 
Hoby  v.  Hoby,  1  Hagg.  Eccl.  Rep. 

146 227,  279, 

346,  370,  372,  952 
Hodgdon  v.  Crosby,  1  Wash.  Terr. 

578 272,  462 

Hodge  v.  State,  26  Fla.  11 

471,  473,  474 
Hodges  v.  Scott,  118  Mass.  530. ..  509- 
Hoeffner  v.  Grand  Lodge  G.  O.  of 

H.  41  Mo.  App.  359.. .  414 

Heerth  v.  Zahle,  92  Ky.  202 

310,  323,  333 
Hoffman  v.  Overbey,  137  U.  S.  465, 

34  L.  ed.  754 499 

Hoge  v.  Fisher,  1  Pet.  C.  C.  163. . 

451,  454,  462,  479,  481 

Holbrook  v.  Gay,  6  Cusb.  215 615 

Holcomb  v.  Holcomb,   95  N.  Y. 

316 564,566,  600 

«.  Holcomb,  28  Conn.  177.. 

607,  608,  609,  612 

v.  State,  41  Tex.  125 558 

Holden  v.  Meadows,  31  Wis.  284.. 

289.  291 
Holdone    ®.     Ancient    Order    of 
United   Workmen,   159 
111.  619,  31  L.  R.  A.  6.".  404 
Holland  v.  Barnes,  53  Ala.  83,  25 

Am.  Rep.  595 726 

v.  Holland,  4  Legal  Gaz.  372 

744,  752,  808 


CASES    CITED. 


XXXV 


Holland    v.     Zollner,     102     Cal. 

633 583 

Hollinger  v.  Syms,  37  N.  J.  Eq. 

221 297 

Holloway  v.  Galloway.  51  111.  159 

292,  318.  451,  460,  462,  464 
Holmes  v.  Oregon  &  C.  R.  Co.  5 

Fed.  Rep.  523 772 

v.  State,  11  Tex.  App.  233..  718 

Holmes's  Case.  4  Russ.  182. 421 

Holsenbake  v.  State,  45  Ga.  43.450,  467 
Holterhoff  v.  Mutual  Ben.  L.  Ins. 
Co.  3  Am.  L.  Rec.272,4 
Bigelow  Life  &  Acci. 

Ins.  Rep.  395 

758,  760,  761,  762,  763 
Holyland's  Case,  11  Ves.  Jr.  10... 

441,  443 

Honesty  v.  Com.  81  Va.  283. 777 

Hooper's  Estate,  174  Pa.  373 482 

Hoover  v.  State.  48  Neb.  184 561 

Hoover's  Case,  8  Mackey,  495 339 

Hoppe's  Estate,  7W.N.C.  523..  277 

Hopper's  Case,  5  Paige,  491 401 

Hopps  v.  People  (1863)  31  111.  385, 

83  Am.  Dec.  231 

25,  176,  457.  471,  529 
Hopson  v.  Boyd,  6  B.  Mon.  296.. 

434,  435,  436,  438,  439 
Hopt  v.  Utah,  104  U.  S.  631,  26  L. 

ed.  873.. 698 

Horaho.  Knox,  87  N.  C.  490 

459,  537,  584,  587 
Horbach  v.  Denniston,  3  Pittsb.  49.  289 
Horn  v.  Anglo-Australian  &  Univ. 
Family  L.    Ins.    Co.   7 

Jur.  N.  S.  673... 405 

v.  Anglo- Australian  &  Univ. 
Family  L.  Ins.  Co.  30 
L.  J.  Ch.  511,  4  L.  T. 
N.  S.  142, 9  Week.  Rep. 

359 405 

v.  Pullman,  10  Hun,  471 ...  504 
v.  Pullman,  72  N.  Y.  269. . 

277,  287,  349 

Home  •».  Home,  9  Ired.  L.  99 

286,  338 
Horner  v.  Marshall,  5  Munf.  466. . 

207,  402 
Hornish  v.  People,  142  111.  620,  18 
L.  R.  A.  237..  125,  130, 
132,  173,  178,  180,  473,  474 
Horton  v.  Equitable  L.  Assur.  Soc. 
(N.  Y.)  2  Bigelow  Life 
&  Acci.  Ins.  Rep.  108. . 

760,  763 
Hoskins  v.  Hoskins  (Ky.)  7  S.  W. 

546... 346,  351 

Hotchkiss  v.  Fortson,  7  Yerg.  67..  725 
Houston  v.    State,  26  Tex.  App. 

657 716,  717 


Houston  &  T.  C.  R.  Co.  v.  Reason, 

61  Tex.  613 770 

v.  Sympkins,  54  Tex.  615, 

38  Am.  Hep.  632 ... 769,  775 

•».  Waller,  56  Tex.  331 771 

Hovey  v.   Chase,   52  Me.  304.  88 

Am.  Dec.  514 244, 

251,  252,  253,  436,  534, 

535,  544,  591 

v.  Harmon,  49  Me.  269 442 

v.  Hobson,  55  Me.  256 

251,  253.  497 
Howard  v.  Braithwaite,  1  Ves.  & 

B.  202 323 

v.  Coke,  7B.  Mon.  655 

278,  284,  310,  567 
Howard's  Will,  5  T.  B.  Mon.  199, 
17  Am.  Dec.  60.... 323, 

328,  341,  354,  604 

Howe®.  Howe,  99  Mass.  88 

267,  378,  451,  475,  500.  510 
v.    State,    11   Neb.    537,   38 

Am.  Rep.  375.. 169 

Howell  v.  Howell,  47  Ga.  492 499 

v.  Taylor,  11  Hun,  214 566 

v.  Taylor,  50  N.  J.  Eq.  428 

273,  288 

Hoyt  0.  Adee,  3  Lans.  173 438, 

439,  531,  610 

Hoyt's  Case,  20  Abb.  N.  C.  162...  764 

Hubbard  v.  Hoag,  60  Iowa,  756..  264 

v.  Hubbard,  7  Or.  42... 288,  462 

v.  Mason  City,  60  Iowa,  400 

778,  781,  784,  785 
Hubbard's  Will,    6  J.   J.  Marsh. 

59 733 

Hubbell  v.  Bissell,  2  Allen.  196...  563 

Hudson  v.  Hudson,  9  L.  T.  N.  S. 

579,  12  Week.  Rep.  216, 

3  Swab.  &  T.  314,  33  L. 

J.  Prob.  N.  S.  5,  9  Jur. 

N.  S.  1302 749 

Huff  v.  Huff ,  41  Ga.  696 322 

Hughes  v.  Hughes,  31  Ala.  519, 
Overruling  Roberts  v. 
Trawick,  13  Ala.  68... 

330,  331,  497,  530,  603 
v.  Hughes,  2  Munf.  209.375,  430 

v.  Hughes,  19  Ala.  308 752 

v.  Jones,  116  N.  Y.  67,  5  L. 

R.  A. 632.431,  432,  435,  439 
Hull  v.   Louth,   109  Ind.  315,  58 

Am.  Rep.  405.454.  523,  610 
Hume  v.  Burton,  1  Ridgew.  P.  C. 

204 434,  531 

v.  Taylor,  63  111.  43 82 

Humphrey's  Will,  26  N.  J.    Eq. 

513.. --  334 

Humphreys  v.  State,  45  Ga.  190.. 
131,  132,  168,  170,  449, 

455,  467 


XXXVI 


CASES    CITED. 


Hunslet  v.  Densberry  Union,  note, 

2  Jur.  N.  S.  1207. 398 

Hunt  v.  Hunt,  3  B.  Mon.  575 

504,  505,  557,  559,  561,  577 
v.  Hunt,  13  N.  J.  Eq.  161.. 

270,  430 

v.  Moore,  2  Pa.  105 247 

v.  State,  33  Tex.  Crim.  Rep. 

252 478,  480 

Hunter  v.    Atkins,  3  Myl.  &  K. 

113 376 

.  v.  Edney,  L.  R.  10  Prob.  & 

Div.93-.384.  385,  388,  391 
Huntingdon  &  B.  T.  R.  &  Coal  Co. 
v.  Decker,  84  Pa.  419, 

82  Pa.  119. 770 

Huntington's  Trial.  447... 172 

Hutchins  v.  Ford,  82  Me.  363 549 

Hutchinson  v.  Brown,  Clarke,  Ch. 

408 725 

v.  Sandt,  4  Rawle,  234,  26 

Am.  Dec.  127.435,  441,  535 
v.  Tindall,  3  N.  J.  Eq.  357. 

728,  731,  733,  741 
Hutton  v.  Waterloo  L.  Assur.  Co. 

1  Fost.  &F.  735 760 

Hutts  v.  Hutts.  62  Ind.  214 519 

Hyatt  v.  Lunnin,  1  Dem.  14 364 

Hver  v.  Little,  20  N.  J.  Eq.  443.. 

258,  557,  584 


Illinois  C.  R.  Co.  v.  Cragin,  71  111. 

177 ...772,  776,  783 

v.  Hutchinson,  47  111.  408..  774 
Imhof  v.  Witmer,  31  Pa.  243.-435,  742 
Ingalls  o.  State,  4S  Wis.  647.. 6S7,  691 
Ingoldsby  v.  Ineoldsby,  20  Grant, 

Ch.  131 278,  289,  298 

Ingram  v.  Wyatt.  1    Hagg.   Eccl. 

Rep.  384.. 368 

Irish  v.  Smith,  8  Serg.  &  R.  573, 

11  Am.  Dec.  648 

317,  343,  496,  507,  511, 

522,  526,  530 
Irvin  v.  Deschampo,  11  W.  N.  C. 

365   325,  345 

Irwin  v.  West,  81  Pa.  157 433 


Jacklin  v.  National  Life  Asso.  of 

Hartford,  75  Hun,  595.  403 

lackson  v.  Hardin,  83  Mo.  175 

288,  328,  352,  356,  360, 

449,  451,  462,  463 
v.  Jackson,  37  Hun,  306.420,  423 


Jackson  v.  Jackson,  39  N.  Y.  153.  357 
v.  King,  4  Cow.  207,  15  Am. 

Dec.  354 9.  247, 

252,  449,  453 

v.  Kniffen,  2  Johns.  31 500 

v.  Moore,  14  La.  Ann.  209.  370 
v.  Yan  Duzen,  5  Johns.  144, 

4  Am.  Dec.  330 

449,  451,  453 
Jackson  Caldwell,  v.  Kine,  4  Cow. 

207,  15  Am.  Dec.  354..  478 
Yan  Dusen,  v.  Yan  Dusen,  5 
Johns.  144,  4  Am.  Dec. 

330   478,  481 

Jacobs  v.  Com.  121  Pa.  586. ..127,  524 
v.  National  Ins.  Co.  85  N.  Y. 

317,  39  Am.  Rep.  660..  412 
v.  Richards,  18  Beav.  300..  435 
Jacox  v.  Jacox,  40  Mich.  473,  29 

Am.  Rep.  547 

250,  267,  270,  452 

James  v.  James,  58  K  H.  266 755 

«.  Langdon,  7  B.  Mon.  193. 

260,  266,  294 
v.  Stonebanks,  1 1ST.  J.L.  227.  610 

James's  Case,  35  X.  J.  Eq.  58 423 

Jamison    n.    Jamison,     3    Houst. 

(Del.)  108 276,  277, 

279,  286,  320,  451,  459,  475 
559,  561,  573,  590,  594,  599 

v.  People,  145  111.  357 

178,  180.  450,  458,  471,  473 
558,  561,  568,  577,  580 

Jane  v.  Com.  2  Met.  (Ky.)  30 470 

Jarrett  v.  Jarrett,  11  W.  Ya.  584.. 
253,  254,  255,  262,  263, 
266,  271,  451,  454,  479, 

481,  590,  599 
Jauncey  v.  Thorne,  2  Barb.  Ch.  40  604 
J.  B.'s  Case,  1  Myl.  &  C.  538.419,  423 
Jeffries  v.  State,  9  Tex.  App.  598. 

683,  704 
Jenckes    v.    Smithfieid,    Court  of 

Probate,  2  R.  I.  255.433,  486 
Jenisch's  Case,  3  Abb.  N.  C.  200.. 1065 
Jenkins  v.  Jenkins,  2  Dana,  103, 

26  Am.  Dec.  437 9, 

382,  383,  386 
v.  Morris,  L.  R.  14  Ch.  Div. 

674 208.  247,  263 

v.  State,  93  Ga.  1 682, 

687,  691,  693 

v.  Tobin,  31  Ark.  306 

310,  363,  463 

Jenkins's  Will.  43  Wis.  610 323 

Jenners  v.  Howard,  6  Blackf.  240. 

719,  785 
Jerry  v.  Townshend,  9  Md.  145.. 

257,  263,  491 
John  Hancock  Mut.  L.  Ins.  Co.  e. 

Daly,  65  Ind.  6. 762 


CASES    CITED. 


XXX  vu 


John  Hancock  Mut  L.  Ins.  Co. 
w.Moore,  34  Mich.  41... 

404,  417;  418 
Johnsw.  Fntchey,  39  Md.  259.720,  781 
Johnson  v.  Armstrong,97  Ala. 731.  517 
v.  Blane,  6  Notes  of    Cas" 

Ecc].  442 _  336 

v.  Chad  well,  8  Humph.  145*  248 
v.  Culver,  116  Ind.  278.499,  509 
v.  Johnson,  10  Ind.  387, 
v.  Johnson,  35  Phila.  Lee' 

Int.  70 _7. 

v.  Kincade,  2  Ired.  Eq.  470* 

382,  380,  430, 

v.   Medlicott.  Cited  in  3  P. 

Wins.  130 729, 

v.  Moore,  1  Lilt.  372... 
v.  Phifer,  6  Neb.  401... 244" 
25*1,  720," 
v.    Pomeroy,    31    Ohio   St. 

247 

v.  Rockwell,  12  Ind.  76 
».  State,  1  Tex.  App.  146 
v.  State,  10  Tex.  App.  571 
467,  539, 
Johnson's  Case,  57  Cal.  529 

Estate,  57  Cal.  529 "" 

Johnston  v.  Brown,  2  Shaw  &  D. 

Sc.  Sess.  Cas.  437 
Jones  v.  Com.  75  Pa.  403.164  683 
v.  Com.  30  Pittsb.  L.  J.  423- 
v.  Consolidated  Invest.  As- 
surance Co.  26  Beav.  256- 
v.  Evans,  7  Dana,  96... 254, 
v.  Goodrich,  5  Moore,  P   c' 

16 

».  Harris,  3  Rich.  L.  14 
v.  Hughes,  15  Abb.  N.   6" 

141 256,  257,  306, 

v.  Jones,  1  Cox,  Ch.  Cas.  184 
•o.  Jones,  43  N.  Y.  S.  R.  434 
250,  253,  451,  461 
».  Lloyd,  L.  R.  18  Eq.  265 ' 
«.  McLellan,  76  Me.  49  498 
v.  People  (Colo.)  47  Pac.  275 
v.  People,  23  Colo.  276.528, 
v.  Perkins,  5  B.  Mon.  222  J 

249,  400,  599.   728 
■o.  Roberts,  37  Mo.  App.  163 

460,  463,  498,  499 
v.  State,  13  Ala.  153.... 

193,  194,  200 

v.  Slate,  29  Ga.  594.... 693    702 

v.  Thompson,  5  Del.  Ch.  374 

243,  247,  248,  249,  250, 

m  253,  259,  378 

v.  White,  1  Strange,  68  532 

Jones's  Appeal,  11  W.  N.  C.  258..  256 

Case,  2  Ohio  Dec.  409...  7 

Estate,  2  Ohio  Dec.  409       "  481 

Will,  2  Ohio  Dec.  409.. 374    375 


743 

431 

731 
301 

730 


401 
732 
490 

540 

684 
767 

742 
698 

•780 

-406 
262 

323 
340 

437 
-611 

462 
379 
499 
191 
541 


Julke  v.  Adam,  1  Redf.  454 

598,  734,"  737"  778 
Juzau  v.  Toulmin,  9  Ala.  662,  44 

Am.  Dec.  448.243,  247,  249 


K. 


Kachline  v.  Clark,  4  Whart.  316 

r     ,.         „  497,  499"  500 

Ivaehn  v.  Com.  84  Kv.  354  466 

Kahl  e.  Schober,  35  N.  J.  Eq.  461. 

487    733 
Kahn's  Case,  1  Connoly,  510         '  302 

24  N.  Y.  S.  R.  409 """  343 

Karew  v.  Continental  Ins.  Co.  57 

Wis.  56,  46  Am.  Rep.  17-416 
Kastell  v.  Hill  man,  53  N.  J.  Eq  49  357 
Kates's  Estate,  16  W.  N.  C.  100  362 
Kearney  v.  People,  11  Colo.  258      174 

v.  State,  68  Miss.  233 

^      .     ,  130.  184,  555 

Keating  s  Appeal,  19  Pitts.  L.   J 

•N-  S.  282.. 338,  452 

Appeal,  36  Pitts.  L.  J.  283.  313 
Keehle  v.  Cummins,  5  Hayw.  43  248 
Keeler  v.  Keeler,  20  N.  Y.  S.  R 

_    .     ,       439. .459;  476 

Keeler  s  Case,  3  N.  Y.  Supp.  629. 

m  300,  303 

Will,  12  N.  Y.  S.  R.  148 
„  295,  296,  301,  304 

Keels  v.  Mutual  Reserve  Fund  L. 

Asso.  29  Fed.  Rep.  198    412 
Keenan  v.  Com.  44  Pa.  55,  84  Am. 

Dec.  414 683,  701 

Keeton  v.  Com.  92  Kv.  522 

„  .  ,  ,  '        688,  692"  693 

Keithley  v.  Keithley.  85  Mo.  217      243 
v.  Stafford,  126  111.  507 

284,  285,  322.  460,  507, 
_  559,  568,  582,  587 

Kelch  v.  State,  55  Ohio  St.  146.  .  456 
Kellogg  v.  Cochran,  87  Cal.  192 
12  L.  R.  A.  104....273| 

430,  443,  447 
Kelly  v.  Com.  1  Grant.  Cas.  484 

683,    700 
v.  McGuire,  15  Ark.  555 

.    245,  248,  559,  600,  601 
v.  Mutual  L.  Ins.  Co.  75  Fed. 

Rep.  657. 411,  412 

v.  State,  31  Tex.  Crim.  Rep. 

216 683,  711,  716 

v.  State,  3  Smedes  &M.  518 
_  683,  688,  693 

Kelly's  Case,  6  Prac.  Rep.  (Can.) 

220 422 

Kemble  v.  Church,  3  Hagg.  Eccl. 

Rep.  273 604 


XXXV111 


CASES    CITED. 


Kempf  v.  Kempf,34Mo.  211. .746,  749 
Kempscy  v.  McGinniss,  21  Mich. 

123 281,308,316, 

462,  540,  541,  542,  545, 

550,  552,  584,  587,  595 
Kempson  v.  Ashbee,  L.  R.  10  Ch. 

Cas.  15... 258 

Kendall  v.  May,  10  Allen,  59 

609,  610,  611 
Kennedy  v.  Marrast,  46  Ala.  161.. 

253,  475 
v.  Uniacke,    State,    48    La. 

Ann.  1230 444 

Kenney  v.  People,  27  How.  Pr.  202 

683,  700 
Kenny  v.  People,  86  N.  Y.  554,  40 

Am.  Rep.  556... 683 

e.  People,  31  N.  Y.  330....  696 

Kenton's  Case,  5  Binn.  613 419 

Kenworthy    v.  Williams,    5    Ind. 

375 464,  478,  481, 

493,  516,  557,  602 
Keough  v.  Foreman,  33  La.  Ann. 

1434_ 722,  728 

Kern  «.  Kern,  51  N.  J.  Eq.  574... 

384,  385,  388,  389,  390,  430 

Kerney's  Estate,  148  Pa.  218 353 

Kerr  v.  Com.  2  Bush.  67,  24  L.  R. 

A.  555 698 

».  Lunsford,  31  W.  Va.  659, 
2L.  R.  A.  668  ....275, 
284,  286,  289,  290,  292, 
349,  492,  496,  518,  531, 
533,  541,  543,  544,  545, 

568,  584,  587,  597,  599 
Kettletas  ».  Gardner,  1  Paige,  488.  757 

Kevil  v.  Kevil,  2  Bush.  614 331 

Key  v.  Holloway,  7  Baxt.  576 

364,  369,  460,  734 

Keyes  v.  Keyes,  22  N.  H.  553 

382  39^ 
Keys  v.  Norris,  6  Rich.  Eq.  388-1  430 
Kidder  v.  Stevens,  60  Cal.  414....  529 
Kiedaisch's  Will,  2  Connoly,  438. 

288,  356,  594 
Kiehne  v.  Wessell,  53  Mo.  App. 

667 431 

Kilburn  v.  Mullen,  22  Iowa,  498..  608 
Kilgore  v.  Cross,  1  Fed.  Rep.  578. 

243,  245,  248,  558,  559,  584 
Killian  v.  Badgett,  27  Ark.  166...  451 
Kimball  v.  Cuddy,  117  111.  213  ... 

251,  253,  276,  353.  453,  455 
Kimberlv's  Appeal,  68  Conn.  428, 

37  L.  R.  A.  261 855 

King  v.  Bryant,  2  Hayw.  (N.  C.) 

393 726 

v.  Cummins,  60  Vt.  502 271 

v.  Davis,  60  Vt.  502 246 

v.  Farley,    1    Hagg.    Eocl. 

Rep.  502 338,  952 


King  v.  King,  Cited   in  L.    R.   2 

Prob.  &Div.  125 396 

v.  Robinson.  33  Me.  114,  54 

Am.  Dec.  614 401 

v.  State,  9  Tex.  App.  515  .. 

126,  172,  176,  456,  467 

v.  State,  91  Tenn.  617 

450,456,  472 

v.  State,  90  Ala.  612 68y,  702 

v.  Tuth,  1   Wheeler,  Crim. 

Cas.  52,  note 128 

Kingsbury -y.Whitaker.  32  La.  Ann. 
1055,  36  Am.  Rep.  278. 
242,  275,  286,  294,  297, 

324,  327,  371,  489 
Kingsley  ».  Blanchard,   66   Barb. 

317 344,  357,  461 

Kinleside  «.  Harrison,  2  Phillim. 

Eccl.  Rep.  449 281, 

308.  338,  353,  485,  598 
Kinloch's  Trial.   25  How.  St.  Tr. 

891,  997..129,  165,  187,  456 
Kinlock  «.  Palmer,  1  Mill,  Const. 

215 452,  459,  478,  481 

Kinne  v.  Johnson,  60  Barb.  69 

288,  289,  307,  324,  326 
V.  Kinne,    9   Conn.  102.    21 

Am.  Dec.  732 277, 

278,  286,  311,  316,  317, 

344,  562,  599 
Kirby  v.  Carr,  3  Young  &  C.  135.  380 
Kirkwood  v.  Gordon,  7  Rich.  L. 
474,  62  Am.  Dec.  418 .. 
275,  283,  284,  289,  333,  594 
Kise  v.  Heath,  33  N.  J.  Eq.  239 ._  350 
Klein's  Case,  Ray  Med.  Jur.  (5th 

ed.)§42 135,  467 

Kline  v.  Kline,  50  Mich.  438 748 

Klock's  Case,  49  Hun,  450 566 

Klohs  v.  Klohs,  61  Pa.  245.. .431, 

435,  719,  766,  778 
Knapp  v.  Reilly,  3  Dem.  427.. 274,  356 

Knauss's  Appeal,  114  Pa.  10 312 

Knecht  «.    Mutual  L.  Ins.  Co.  90 

Pa.  118 760 

Knickerbocker  L.  Ins.  Co.  v.  Foley, 
105  U.  S.  350,  26  L.  ed. 
1055,  11  Fed.  Rep.  766, 

note ..598,  758 

e.  Peters,  42  Md.  414,  7  Chi- 
cago Leg.  News,  421 

404,  408,  411,  416 
Knight  v.  Young,  2  Ves.  &  B.  184.  181 
Knights  Templar  &  Mason's  L. 
Indem.  Co.   v.  Berry,  4 
U.  S.  App.  353,  50  Fed. 

Rep.  511 415 

Knox  v.  Haug,  48  Minn.  58 273 

v.  Knox,  30  S.  C.  377..:..-  535 
v.  Knox,  95  Ala.  495 ... .  288, 

290,  330,  331,  459,  492 


OASES    CITED. 


XXXIX 


Knox's  Appeal,  26  Conn.  20 460 

Koegel  v.  Egner,  54  N.  J.  Eq.  028 

735,778,  779 
Koenig  v.  Globe  Mut.  L.  Ins.  Co. 

10  Hun,  558 538,  584 

Koile  v.  Ellis,  16  Ind.  301 264,  49L 

Koons  v.  Benscoter,  2  Kulp,  451..  430 
Kramer  v,  Weinert,  81  Ala.  414.. 

274,  278,  288,  290,  352,  492 
Krielfl.  Com.  5  Bush.  362 99, 

172,  173,  466,  467,  469, 

470,  690,  694,  695 
Kroenung  v.  Goahri,  112  Mo.  641.  260 


LaBau  v.  Vanderbilt,  3  Redf.  382. 
304,  305.  333,  334,  353 
502 
Lackey  v.  Lackey,  8  B.  Mon.  107_. 
Lacy  v.  State,  30  Tex.  App.  119.. 
Lady    Campbell,    The,    2    Hagg, 

Adm.  5 

Laing  v.  Bruce,  1  Dunlop,  B.  &  M 

59 261,270 

v.  Laing,  21  N.  J.  Eq.  248.. 

751 

Lake  v.  People,  1  Park  Crim.  Rep 

495.. 450,  456,  498,  509 

536,  542,  544,  545,  551 

Lamb  v.  Lamb,  105  Ind.  456 

228,  278,  330 
Lamberts  v.  Cooper,  29  Gratt.  61. 
L'Amoreaux  v.  Crosby,  2  Paige 
422..431,  432,  435,  766 
Lamprey  v.  Nudd,  29  N.  H.  299.. 
Lancaster  v.  State,  2  Lea,  575.699 
Lancaster  Co.  Nat.  Bank  v.  Moore 
78  Pa.  407,  21  Am.  Rep 

24 430 

Landis  ».  Landis,    1   Grant.  Cas 

248 452,  459,  478 

481,  502 

Lanergan  v.  People,  50  Barb.  266. 

683,  693 

v.  People,    6    Park.    Crim 

Rep.  209 683,  687 

Lang's  Estate,  65  Cal.  19 

336,  344,  373,  499,  720 

Langdon  v.  People,  133  111.  382... 

192,  450,  471,  477,  480 

482,  484,  487 

Langley's  Case,  Cited  in  Shelford 

Lunacy,  90... 

Laning  v.  New  York  C.  R.  Co.  49 
N.  Y.  521,  10  Am.  Rep 

417 776 

Lansing  v.  Russell,  13  Barb.  521.. 

Laros  v.  Com.  84  Pa.  200 162 

183,  200,  495 


505 
423 
186 

729 

374 

755 


563 

518 
323 

767 
401 
704 


528 


526 
713 
696 
765 


506 
422 


790 
378 

527 


Latham  v.  Udell,  38  Mich.  238...  308 


Lathrop  v.  Borden,  5  Hun,  660...  802 

Latta's  Case,  43  Kan.  533 ..  447 

Lavette  v.  Sage,  29  Conn.  577... 

260,  725 

Lawless  v.  State,  4  Lea,  179 472 

Lawrence  v.  Lawrence,  4  N.  Y. 
Week.  Dig.  299... 277, 

288,  350,  565 
v.  Steel,  66  N.  C.  584 

289,  290,  329 
v.  Willis,  75  N.  C.  471.  251,  259 

Lawrence's  Case,  28  N.J.Eq.  331.  4^9 
Lawton  v.  Sun   Mut.    Ins.   Co.   2 

Cush.  5)0 682 

Layman's  Will,  40  Minn.  371.. 461,  462 
Leach  v.  Marsh.   47  Me.    548,  74 

Am.  Dec.  503 401 

v.  Prebster,  39  Ind.  492 559 

Leache  v.  State,  22  Tex.  App.  279, 
58  Am.  Rep.  638.. 125, 
126,  134,  175,  176,  456, 
466,  467,  478,  482,  483, 

536,  540,  544,  553,  555 
Leaf  v.  Coles,  1  DeG.   M.  &  G. 

175 379,  380 

Leake  v.  Linton,  6  La.  Ann.  262..  750 
Le  Breton  v.    Fletcher,    2  Hagg. 

Eccl.  Rep.  558 323,  604 

Leckey  v.   Cunningham,    56   Pa. 

370. .430,  486,  766,  767,  768 
Lee  v.  Lee,  4  McCord  L.  183,  17 

Am.  Dec.  722 278, 

279,  306,  315,  316,  333, 

452,  459,  478,  481 

v.  Lee,  3  Wash.  236 750,  752 

v.  Scudder,   31   N.    J,   Eq. 

634 298 

v.  Ware,  1  Hill.  L.  313 720 

Lee's  Case,  46  N.  J.  Eq.  193 

288,  289,  290,  487,  737,  780 
Leech  v.  Leech,  5  Clark  (Pa.)  86.. 

274,  278,  288,  301.  306,  737 

v.  Leech,  5  Pa.  L.  J.  86 345 

Leeper  v.  Taylor,  47  Ala.  221 .  .277,  280 
Legeyt    v.   O'Brien,   Milw.    Eccl. 

Rep.  325 382,  741,  842 

Legg  v.  Myer,  5  Redf.  320.... 280,  459 
Leggate  v.  Clark,  111  Mass.  308. . 

273,  532 
Leggett  v.  State,  21  Tex.  App.  384-712 
Leighton  v.  Orr,  44  Iowa,  691....  268 
Lemann  v.  Bonsall.  1  Add.  Eccl. 

Rep.  389 950 

Lemon  v.  Jenkins,  48  Ga.  313 

256,  266,  284,  345,  375 
Lenhard  v.  Lenhard,  59  Wis.  60..  267 
Lennig's  Estate,  4  Pa.  Dist.  R.  94 

353,  575,  584 
Leonard  v.  Leonard,  14  Pick.  280 

431,  767 
Leonard's  Case,  95  Mich.  295....  420 


xl 


CASES    CITED. 


Lester  v.  State,  32  Ark.  727. 791 

Levett's  Case,  Cro.  Car.  538 117 

Levi's  Estate,  140  Pa.  179.. 738 

Levy  v.  Lindo,  3  Meriv.  85 347 

Lewis  v.  Arbuckle,  85  Iowa,  335, 

16  L.  R.  A.  677.- 268 

x.  Baird,  3  McLean,  56 721 

x.  EHgle  Ins.  Co.  10  Gray, 

508 613 

v.  Jones,  50  Barb.  645 

435,  767,  768 
x.  Lewis,  44  Minn.  124,  9  L. 

R.  A.   505 384,  386 

v.  Lewis,  6  Sera:.  &  R.  496.  309 

x.  Mason,  109  Mass.  169 

506,  511,  533,  548 

x.  Pead,  1  Ves.  Jr.  19 

249,  271,  451 
Lewis's  Case.331Sr.  J.  Eq.  219.328,  348 

Case,  51  Wis.  101 1068 

Will,  51  Wis.  101.291,  323,  355 
Lev's  Case,  1  Lewin,  C.  C.  144.193,  197 
Case,  1  Lewin,  C.  C.  239..  472 
Liddington's  Will,  20  K  T.  S.  R. 

610 339 

Life  Asso.  of  Amer.  x.  Walker,  57 

Ga.  533 405,  410 

Lisktfoot  v.  Heron,  3  Younge  & 

C.  Exch.  586 723 

Lillibridge"s  Estate,  133  Pa.  211.. 

312,  318,  319 

Lilly  v.  People,  141  111.  75. 471 

v.  People,  14S  111.  467 

125,  176,  458.  471,  472,  474 

e.  Waggoner,  27  111.  395.260,  486 

Lin  x.  Lindhardt,  127  Mo.  271  ...  454 

Lincoln  v.  Norton,  36  Vt.  679 400 

Lindsey  v.  Lindsey,  50  111.  79,  99 

Am.  Dec.  4S9.. 251 

Lindslev's  Case.  43  X.  J.  Eq.  9..  423 

Case,  44  N.  J.  Eq.  564 422 

Linton's  Appeal,  104  Pa.  228.-354,  368 

Case,  29  W.  N.  C.  550 534 

Litchfield's  Appeal,  28  Conn.  127, 

73  Am.  Dec.  662 402 

Little  v.  Little,  13  Gray,  264.. 397,  433 
Little  Rock  &  Ft.   S.  R.   Co.  x. 

Parkhurst,  36  Ark.  371 774 

Livingston  v.  Kiersted,  10  Johns. 

362 608,  613 

Livingston's  Appeal,  63  Conn.  68 

462,  463 

Lloyd  x.  Lloyd,  66  111.  87 391 

Lockridge  v.  Lockridge,  3  Dana, 

28,  28  Am.  Dec.  52 750 

Lockwood's  Will,  2  Connolly,  118  336 
Lodge  x.  Lodge,  2  Houst.   (Del.) 
419.. 277,  286,  316,  350, 

449,  459,  536,   600 
Loeffner  v.  State,  10  Ohio  St.  598 

134,  450.  456,  465,  466,  467 


Loeser's  Estate,  3  Pa.  Dist.  R.  817  314 

Estate,  35  W.  N.  C.  43 312 

Loewenstine's  Estate,  2  Misc.  323  358 

Loewer  v.  Sedalia,  77  Mo.  431 778 

Loftus  v.  Maloney,  89  Va.  576... 

720,  721,   728 

Logan  x.  McGinnis,  12  Pa.  27 601 

Long  v.  Long,  9  Md.  348  — 258 

x.  Long,  4  Ir.  Ch.  106 449 

v.  State,  38  Ga.  491 194 

Longheal  x.  B.  F.  Coombs  Com- 
mission Co.  2  Mo.  App. 

Rep.  1017 719 

LoDgmate  v.  Ledger,  2  Giff.  157. .  250 
Look  x.  Dean,  108  Mass.  116,  11 

Am.  Rep.  323 444 

Looney  v.  State,  10  Tex.  App.  520, 

38  Am.  Rep.  646 177 

Lopez  v.  State,  30  Tex.  App.  487.  615 

Lord  x.  Beard,  79  N.  C.  5 550,  613 

Lott  x.  Sweet,  33  Mich.  308 444 

Lovatt  x.  Tribe,  3  Fost.  &  F.  9... 

536,  588,  594 
Love  x.  Johnston,  12  Ired.  L.  355.  496 
Lovegood  v.  State,  31  Tex.  Crim. 

Rep.  491 190,  466,  1066 

Lowder  x.  Lowder,  58  Ind.  538 

277,  288,  291,  309,  497 
Lowe®.  Joliffe,  1  W.  Bl.  365. .323,  604 
x.  Williamson,  2  N.  J.  Eq. 

82 288,  562,  599 

Loyd?).  State,  45  Ga.  57 131,  171 

Loza  x.  State,  1  Tex.  App.  488,  28 

Am.  Rep.  416 691 

Lozear  x.  Shields,   23  1ST.  J.  Eq. 

509 244,  247 

Lucas  x.  Parsons,  23  Ga.  267 432 

x.   Parsons,   24  Ga.  640,  71 

Am.  Dec.  147 293, 

294,  296,  297,  310 

x.  Parsons,  27  Ga.  595 333 

Ludlow    v.     Landgrove,    42    Vt. 

137  398 

Ludwick».  Com."  18 _Pa!Yra7_764,  766 
Lyddy's  Case,  17  N.  T.  S.  R.  2...  592 
Estate,  24  K  Y.  S.  R.  607 

S34,  591 
Will,  5  N.  Y.  Supp.  636.-.  319 
Lyle  x.  State,   31  Tex.  Crim.  Rep. 

103 710,  716 

Lynch®.  Com.  77  Pa.  205 127, 

466,  467,  470 
x.  Doran,  95  Mich.  395.561,  575 
v.  New  York,  47  Hun,  524. 

770,  771,  772 

Lvnch's  Case,  5  Paige,  120 763 

Lynn  x.  Home,  L.  R.  6  Eq.  655-.  379 
Lyon   x.  Home  (1868)  L.  R.  6  Eq. 

655,  682... 235,  268 

x.  Yan  Riper,  36  N.  J.   Eq. 

337 259,  350 


CASES    CITED. 


Xll 


Lyons  v.  New  York  C.  &  II.  R.  R. 

Co.  39  Hun.  886 789 

Lyster  v.  Lyster,  111  Mass.  327... 

743,  755 
Lytlea.  State,  31  Ohio  St.  196 787 


M. 


Mabie's  Case,  5  Misc.  179 288,  291 

McAdam  v.  Walker,  1  Dow,  P.'C. 

148.. 263,  272,  383,  388,  527 
McAllister  v.  Slate,  17  Ala.  434,  52 

Am.  Dec.  180 132, 

489,  537,  539,  589,  593,  594 
v.  Territory,  1  Wash.  Terr. 

360  189,  458 

McBee  v.  McBee,  22  Or.  329 747 

McCammon  v.    Cunningham,  108 

Ind. 545.9,  204,  419,  420,  423 
McCann  v.  People,  3  Park.  Crim. 

Rep.  272.. ...541,  551 

McCann's  Case,  2  Pa.  Dist.  R.  181.  284 

McCarthy's  Case,  55  Hun,  7. 

566,  585,  598,  603 
McCarty  v.  Com.   14  Ky.  L.  Rep. 

285 541,  713 

v.  Com.  86  Kv.  110 682 

«.  Kearnan,  86  111.  291 475 

«.  State,  4  Tex.  Arjp.  461... 

697,  698,  794 
McClackey  v.  State,  5  Tex.  App. 

320 537,  558,576,  600 

McClain  v.  Davis,  77  Ind.  419 402 

McClary  v.  Stull,  44  Neb.  175 

296,  297,  305 
McCleary  v.  Barcalow,  6  Ohio  C. 

C.  481 .389,  742 

McClintock  v.  Curd,   32  Mo.  411, 

4L.  R.  A.  738 286,  550 

McClure   v.  Mutual    L.    Ins.    Co. 

55  N.  Y.  651 418 

McConnell  v.  Wildes.  153  Mass.  487 

496,  565 
McCook  v.  State,  91  Ga.  740.. 682,  708 
McCoon  v.  Allen,  45  N.  J.  Eq.  708 

288,  289,  451,  459 
McCormick».Demary,10Neb.515.  728 

v.  Malin,  5  Blackf.  509 727 

McCracken  v.  Markesan,  76  Wis. 

499    ; 775,  786 

McCraine  v.  Clarke,  2  Murph.  317.  505 
McCreightc.  Aiken,  RiceL.56.438,  531 
McCue's  Case,  17  N.  J.  Week.  501  303 
McCulloch   v.  Campbell,  49   Ark. 

367 277,  288, 

289,  291,  327,  459 
McCullough  v.  Expressman's  Mut. 

Ben.  Asso.  133  Pa.  142, 

7  L.  R.  A.  210. 414 


McCullough's  Will,  35  Pitts. 
L.  J.  169,  Adirmed  in 
Heating's    Appeal,    36 

Pitts.  D.  J.  283 286, 

292,  316,  864,  545,  .",77,  733 
McCurry  v.  Hooper,  12  Ala.  823, 

46  Am.  Dec.  280 

347,  434.  557 
McCutchon  v.  Pigue,  4  Heisk.  565  608 
McDaniel  v.  Crosby,  19  Ark.  533. 

311,366,  600 
v.  McCoy,  68  Mich.  340..       266 
McDaniel's  Will,  2  J.  J.  Marsh,  331 

327.  355,  598 
McDiarmid  v.  McDiarmid,  3  Bligh, 

N.  S.  374 259 

McDonald  v.  Chicago,  M.  &  St.  P. 

R.  Co.  75  Wis.  121 768 

v.  McDonald,  16  Grant,  Ch. 

37-- - 247 

v.  McDonald,  14  Grant,  Ch. 

546 241 

McDonald's  Estate,  130  Pa.  480...  340 

McDougal  v.  State,  88  Ind.  24 179 

v.    State  (Ind.)  4  Crim.  L. 

Mag.  509 456,  457 

McDougald  0.  McLean,  Doe, 
Winst.  L.  pt.  1.  p.  120. 

567,  584 
McDowell  v.  Preston,  26  Ga.  528.. 

614,  807 

Mace  a.  Reed,  89  Wis.  440 795 

McElroy  v.  McElroy,  5  Ala.  81... 

227,  279,  283,  311 
McElroy's  Case,  6  Watts  &  S.  451 

423,  426,  428 
McElwee  v.  Ferguson,  43  Md.  479 

346,  347,  738 
McFaddin  v.  Vincent,  21  Tex.  47.  259 
McFarland's  Trial,  8  Abb.  Pr.  N. 

S.  57. 172 

Trial,  8  Abb.  Pr.  N.  S.  69..  132 
McGill  v.  McGill,  19  Fla.  341.744,  746 
McGinley  v.  United  States  L.  Ins. 

Co.  77  N.  Y.  495 759 

McGinnis  v.  Com.  102  Pa.  66.683,  698 
v.  Com.,   McGinnis,  74  Pa. 

245   430,  767 

v.  Kempsev,  27  Mich.  363. . 
462,  477,  517,  518,  536, 

555.  584 
McGonegal  v.  McGinnis,  Com.  3 

Pitts.  L.  J.  445.... 764,  766 
v.  McGonegal,  46  Mich.  66..  748 
McHugh  v.  Fitzgerald,  103  Mich. 

21 ....288,  291, 

537,  554.  584,  588 
Mclntire  v.  Worthiugton,  68  Md. 

203 374 

Mclntyre  v.  Kingsley,  1  Ch.  Cham- 
bers, 281 428 


XiU 


CASES    CITED. 


Mclntyree.  People,  3SI11.  514-R82, 

666,  686,  699.   702 
Mack  v.  Handy,  39  La.  Ann.  491. 

744,  750 
McKay  v.  McKay,  18  B.  Mon.  8—  749 

McKee*.  Ingalls.  5  111.  30 6S2 

v.  People,  36  N.  Y.  113 513 

Mackenzie  v.  Handasyde,  2  Hagg. 

Eccl.  Rep.  211,.. 364 

v.  State,  26  Ark.  334. _. 449, 

455,  456,  466 
McKillop  v.  Duluth  Street  R.  Co. 

53  Minn.  532.... 792 

McKim's  Estate.  27  W.  N.  C.  110.  313 
Estate,  9  Pa.  Co.  Ct.  209. . .  289 
Macklin's  Case.  3  Cooper,  257.129,  282 
McKnight  v.  Wright,  12  Rich.  L. 

232 366 

McLane  v.  Elder  (Tex.  Civ.  App.) 

23  S   W   758  528 

McLaughlin's  Will!  2  Redf'oOiL"  734 

McLean  v.  State,  16  Ala.  672 

489,  498,  501,  509,  580 
McLeary   v.   Norment,    84  N.  C. 

235 557 

McLeod  v.  State,  31  Tex.    Crim. 

Rep.  331..191,  546,  571,  711 
McMaster  v.  Scriven,  85  Wis.  162. 

291,  328.  354,  369 
McMastersfl.  Blair,  29  Pa.  298... 

290,357,459,  482 
McMechan   v.  McMechan,    17  W. 
Va.  683,  41   Am.  Rep. 
682.. 274,  327,  461,  501, 

521,  541,  543,   545,  585 
McMeekin  t.  McMeekin,  2  Bush, 

79 ..323,  330 

McNaghten's  Case,  1  Car.   &  K. 

130,note 541 

Case.  10  Clark  &  F.  200.19, 
22,  23,  89, 131,  134,  142, 
151,   169,  170,  449,  450, 

467,  540,  583,   591 

McNamara's  Case,  Arkley,  521 201 

McNinch  v.  Charles,  2  Rich.  L.  229 

369,  507 
Maconnehey  «.  State,  5  Ohio  St. 

77   ..... 710,  711 

McPherson's  Appeal  (Pa.)  11  Atl. 

205 734 

Macpherson's  Case.l  Connoly,  223.  338 

McQuirk  i:  State,  84  Ala.  435 201 

McRaee.  Malloy.  93  N.  C.  154...  557 
McSorley  v.  McSorley,   2  Bradf. 

188 ..274,  364,  739 

McSparran  v.  Neeley,  91  Pa.  117..  722 
McTasrgart   v.  Thompson,  14  Pa. 

149 274,  280,  282, 

322.  498,  509 
McVickar  v.  McTickar,  46  N.  J. 

Eq.  490..  743,  750,  754,  755 


Maddox  ».  Maddox,  114  Mo.  35, 
35  Am.  St.  Rep.  735... 

283    522 
v.  SimmoDS,  31  Ga.  512.243!  250 
Magahay  v.  Magahay,  35  Mich.  210  745 
Magee  ».  McNeil,  41  Miss.  17,  99 

Am.  Dec.  354 495 

Maguire  v.  Middlesex  R.   Co.  115 

Mass.  239 770 

Mahone  v.  Mahone,  19  Cal.  627,  81 

Am.  Dec.  91. 745 

Mahoney's  Will,  58  Hun,  608,  34 

K  Y.  S.  R.  183 319,  336 

Mairs  v.  Freeman,  3  Redf.  181.292,  327 
Mallory   v.  Travelers  Ins.  Co.  47 
N.  Y.  52,  7  Am.  Rep. 

410 403 

Malone  v.  State,  49  Ga.  210 688 

Maloney  v.  Dewey,  127  111.  395...  401 
Malta,  The,  2  Haee.  Adm.  158...  729 
Manby«.  Bewick,  3  Kay  &  J.  342..  400 
Manhattan  L.  Ins.  Co.  v.  Brough- 
ton,  109  U.  S.  121,  27  L. 
ed.  878. ..129,  204,  282,  408 

Manley  v.  Staples,  65  Vt.  370 

298,479,  487 
Mann  v.  Betterly,  21  Yt.  326- .243,  250 
Mansfield  B.Mansfield,  13  Mass.  412  397 

v.  Watson,  2  Iowa,  111 

719,  720,  721,  724,  730 
Marceau  v.  Travelers'  Ins.  Co.  101 

Cal.  338 132,  171, 

241,  404,  414,  416,  508,  535 
Markiea.  Markle,  4  Johns.  Ch.  168.  426 
Marks  v.  Bryant,  4  Hen.  &  M.  91.  352 
Marler  v.  State,  67  Ala.  55,  42  Am. 

Rep.  95 199,  535,  615 

Marmon  v.  Marmon,  47  Iowa,  121 

251,  258 
Marquette,  H.  &  O.  R.  Co.  x.  Hand- 
ford,  39  Mich.  537 773 

Marsh  v.  Marsh,  28  L.  J.  Prob.  N. 
S.  13, 1  Swab.  &  T.  312, 

5  Jur.  N.  S.  46 752 

v.  Tyrrell,    2    Hasg.    Eccl. 

Rep.  84 281,  388,  952 

Marshall  v.  State,  59  Ga.  154.. 682,  697 
Marshall's  Case,  1  Lewin  C.  C.  76 

702,  703 
Martin  v.  Baker  (Mo.)  36   S.  W. 

369 249,  250 

v.  Baker,  135  Mo.  495 523 

v.  Johnston,    1   Fost.   &  F. 

122 516,  532,  536.  549 

v.  Martin,  8  Week.  Rep.  367  395 

v.  Mitchell,  28  Ga.  282 331 

v.  Perkins.  56  Miss.  204 

461,  462,  559.  600,  604 
v.  Thayer,  37  W.  Va.  38.  .. 
3,  7,  278,  289,  292,  299, 

320,  325,  352 


CASES    CITED. 


xliii 


Martin  c.Wotton,  1  Lee,  Eccl.  Rep. 

130 370,  952 

Martin'sCase,  Shelf  ord, Lunacy, 407  129 
Martin's  (Jobnathan)  Case,  York 

Minster  Arson  Case 18 

Martinez  v.  Moll,  40  Fed.  Rep.  724  202 
Marx  v.  McGlynn,   4  Redf.  457, 

Affirmed  88  N.  Y.  357. . 

498,  502,  500,  507 
Mason   v.  Dunbar,  43  Mich.  410, 

38  Am.  Rep.  201 249 

v.  Libbey,  2  Abb.  N.  C.  137  00s 

v.  Mason,  131  Pa.  101 743 

v.  Mason,  1  Edw.  Ch.  278.. 

749,  752,  753 
Mason's  Case,  1  Barb.  430.... 423,  424 

Case,  3  Edw.  Ch.  380 421 

Case,  00  Hun,  40  -.422,  425, 

441.  522,  530.  543,  555,  584 
Massengale  v.  State,  24  Tex.  App. 

181. 185,  450.  457,  407 

Matchin  v.  Matchin,  0  Pa.  332,  47 

Am.  Dec.  400. 393 

Matthiessen  &  W.  Ref .  Co.  v.  Mc- 
Mahon,  38  N.  J.  L.  530. 

245,  381 

Maupin  v.  Woals,  1  Duv.  223 323 

Maverick  «.Reynolds,2Bradf.  300.  275 
Maxwell  v.  Lord  Montague,  Cited 

in  3  Atk.  540 433 

v.  Pittenger,  3  N.  J.  L.  150.  723 
v.  State,  89  Ala.  150.... 400,  470 
May  v.  Bradlee,  127  Mass.  414 

499,  501,  505,  587 
Maynard  v.  Vinton,  59  Mich.  139, 

00  Am.  Rep.  270 595 

Mayo  v.  Jones,  78  N.  C.  402 

300,  307,  459 
Meacham  v.  New  York  State  Mut. 
Ben.   Asso.   120  N.   Y. 

237. 403,  415,  417, 

758,  759,  762 
v.  State  Mut.  Ben.  Asso.  27 
N.  Y.  Wk.  Die.  423...  409 
Mead  v.  Coombs,  26  N.  J.  Eq.  173.  731 
Means  «.  Means,  5  Strobh.  L.  167. 

320  327 
Mears  v.  Mears,  15  Ohio  St.  90...!  463 
Meathe  v.  Meathe,  83  Mich.  150..  747 

Meeker  v.  Meeker,  75  111.  260 

274,  284,  285,  309,  334,  520 

v.  Meeker,  74  Iowa,  352 

284,  288,  289,  510,  544, 

582,594,  595 
Melanefy  v.  Morrison,  152  Mass. 

473 504,  603 

Melendy  v.  Spaulding,  54  Vt.  517.  549 
Memphis  &  C.  R.  Co.  v.  Womack, 

84  Ala.  149 709 

Mendilon  v.  State,  18  Tex.  App. 

462 456,  561,  583 


Menkins  v.  Lichtner,  18  111.  282.. 
449,  453,  477,  478,  488, 

719,  780 
Mercer  v.  Kelso, 4  Gratt.  106.. 278,  344 
v.  Stale.  17  Ga.  146.082,  685,  797 
Merriman's  Will,  42  N.  Y.  S.  R. 
019,  Affirmed  136  N.  V. 

58.... ..344,  352 

Merrill  v.  Rolston,  5  Redf.  220... 

293.  300,  349 
».  Rush,  33  N.  J.  Eq.  537..  352 
Merritt  v.  Cotton  States  L.  Ins.  Co. 

55  Ga.  103 410,  410 

Messenger   v.    Bliss,  35  Ohio   St. 

587 430 

Meyer  v.  King,  72  Miss.  1 769 

v.  Pacific  R.  Co.  40  Mo.  151.  770 
v.  People,  156  III.  126. .176,  192 

Meyers  v.  Com.  82  Pa.  141 

465.466,  468 
MicLigan  C.  R.  Co.  v.  Gilbert,  46 

Mich.  176 776 

Michigan  Mut.  L.  Ins.  Co.  v.  Nau- 

gle,  130  Ind.  79 408 

Middleborough    v.   Rochester,    12 

Mass.  363 384,  398 

Middleditch  v.  Williams,  45  N.  J. 
Eq.  726,  4  L.  R.  A.  738 

286,  295,  297,  304,  309 
Middleton  v.  Sherburne,  4  Younge 

&  C.  358 363 

Mifflin  v.  Smedley,  3  Del.  Co.  Rep. 

143 372 

Mill's  Appeal,  44  Conn.  484 517 

Miller  v.  Craig,  36  111.  109.. -.243,  251 
v.  Finley,  26  Mich.  249,  12 

Am.  Rep.  300 720,  722 

v.  Mutual  Ben.  L.  Ins.  Co. 
31   Iowa,   218,    7    Am. 

Rep.122 763 

v.  Oestrich,  157  Pa.  264.... 

345,356,  800 
v.  Rutledge,  83  Va.  863.... 

251,  253,  449 
n.  St.  Louis  Hospital  Asso. 

73  Mo.  242 336 

v.  White,  5  Redf.  320 

348,  374,  459,  470 
Mills  v.  Slook,  9  W.  N.  C.  379  ...  534 

Milne  v.  Bartlett,  3  Jur.  358 380 

Milner  v.  Turner,  4  T.  B.  Mon.  244.  247 
Milton  v.  Hunter,  13  Bush.  103. .. 

463,503,  505 
Minor®.  Thomas,  12  B.  Mon.  106..  343 
Miskey's  Appeal,  107  Pa.  011  .... 

430,726.  767 
Missouri  P.  R.  Co.   v.  Brazzill,  72 

Tex.  233.-244,  261,479,  530 
«.  Evans,  71  Tex.  362,  1  L. 

R.  A.  446 768,  773 

Mitchell  v.  Kingman,  5  Pick.  431.  709 


xliv 


CASES    CITED. 


Mitchell  v.  Thomas.  6  Moore,  P.  C. 
137. 12  .Tur.  967,  5  Notes 

of  Cases.  600 364,  365 

Mix  v.  McCoy,  22  Mo.  App.  488- _ 

683,  784 
Moett  v.  People, 85 N.Y.  373..  129, 

131,  132,  457,  472 
Moffit  v.  Witherspoon,  10  Ired.  L. 

185 --  244 

Mohler  v.  Shank,  93  Iowa,  273,  34 

L.  P.  A.  161.— 395 

Monahan's  Case,  9  Ir.  Eq.  253 

422,  1068 
Monroe  Co.  v.  Budlong,  51  Barb. 

493 439 

Montag  v.  People.  141  111.  75.. 449, 

457,  458,  471,  473.  474,  686 
Montague  «.  Allen,  78  Va.  592,  49 

Am.  Rep.  384 275, 

277,  350,  590 
Montgomery  v.  Com.  88  Ky.  509. . 

173,  181,  489,  547,  555 

Moody  v.  Bibb,  50  Ala.  248 419 

Moon  v.  State,  68  Ga.  687 688 

Mooney  v.  Olson,  22  Kan.  69 

498,  499,  500 

v.  State,  33  Ala.  419 682,  704 

Moore  v.  Allen,  5  lad.  521. 463 

v.    Com.    13  Ky.   L.    Rep. 

738 —  466 

v.  Com.  92  Ky.  630... .450, 

455,  466,  489 
v.  Connecticut  Mut.  L.  Ins. 
Co.  lFlipp.  363._..405, 

408,409,410,  416 

v.  Hershey,  90  Pa.  196 438 

v.  McDonald,  68  Md.  321..  311 

v.  Moore,  62  Mo.  192 

259,  377,  571,  596 
v.  Moore,  41  Mo.  App.  176.  748 
v.  Moore,  2  Bradf.  265.-337,  495 
x.  Speir,  SO  Ala.  129... 492,  569 

v.  State,  68  Ga.  687 693 

Moore's  Estate.  68  Cal.  281 382 

Mordaunt  v.  Moncrieffe,  43  L.  J. 
Mat.  N.  S.  49,  30  L.  T. 
N.  S.  649,  22  Week. 
Rep.  12,  L.  R.  2  H.  L. 

(Sc.)374 396 

D.  Mordaunt,  L.  R.  2  Prob. 
&  Div.  129,   18  Week. 

Rep.   845 396 

Morgan  v.  Boys,  Cited  in  7  Ad.  & 

El.  337. 508 

Morgan's  Case,  7  Paige,  236.-419,  421 
Morris*.  Clay,  8  Jones,  L.  216...  719 
v.  Morton,  14  Ky.  L.  Rep. 

360 333,477,  497 

v.  Nixon,  7  Humph.  579. ..  730 

«.  State,  84  Ala.  405. 702 

v.  Stokes,  21  Ga.  552 280 


Morrison  v.   Maciline,    24  Scotch 

Sess.  Cas.  626 553 

v.  McLeod,  2  Dev.  &  B.  Eq. 

221 727 

t>.  Smith,  3  Bradf.  209.. 367,  478 
v.  State.  84  Ala.  405.... 682.  693 
Morse  v.  Crawford,  17  Vt.  499,  44 

Am.  Dec.  349 557,  558 

v.  Scott,  4Dem.  507.... 297, 

301,  329,  343,  478 
Morton  v.  Morton  (N.  J.)  7  Cent, 

134 249.  250,  258 

Moss  v.  Tribe,  3  Fost.  &  F.  297. ..  721 
Mosser  v.  Mosser.  32  Ala.  551.299,  3:J.l 
Motley  v.  Head,  43  Vt.  633.... 38 1,  433 
Mott  v.  Mott,  49  N.  J.  Eq.  192. ..  258 
Mountain   v.  Bennet,  1  Cox,  Eq. 

356 280,  308,  461 

Mowry  v.  Home  L.  Ins.  Co.  9R.  I. 

346 762 

v.  Silber,  2  Bradf .  133 

364.  367,  454 

Moyer  «.  Swygart,  125  111.  267 311 

Mudway  v.    Croft,  3  Curt.  Eccl. 

Rep.  671 8,  279 

Muir  v.  Miller,  72  Iowa,  585 362 

Mull  v.  Carr,  5  Ind.  App.  491.570,  580 
Muller  v.  St.  Louis  Hosp.  Asso.  5 

Mo.  App.  390 496, 

500,  501,  502 
Mullinsfl.  Cottrell,  41  Miss.  291.. 
279,  295,  299,  304,  358, 
449,  459,  475,  47S.  479, 

517,  518,  530 
Mulloy  v.  Ingalls,  4  Neb.  115.244,  251 
Munday  v.  Taylor,  7  Bush,  491...  335 
Murdv's  Appeal,  23  W.  N.  C.  124.  367 
Murfett  v.   Smith,  L.  R.  1  Prob. 

Div.  116. 297 

Murley  v.    Templeman,    Cited   in 

Shelford,  Lunacy,  495.  611 
Murphree  v.  Senn.  107  Ala.  424_. 

459,  482,  507,  516,  561 

Murphy  v.  Com.  92  Ky.  485 

181,  182,  184,  528 
v.  People,  90  111.  59. ...764,  795 

Murray  v.  Carlin,  67  111.  286 727 

Murry  v.  Hennessey,  48  Neb.  608.  460 
Musick».Fisher,16Ky.L.Rep.  277  379 
Musselman  v.  Cravens,  47  Ind.  1.  431 
Mutual  Ben.  L.  Ins.  Co.  v.  Daviess, 

87  Ky.  541 407 

Mutual L.  Ins.  Co.  t>.Hunt,79  N.T. 

541  437 

v.  Lubrie,  71  Fed.  Rep.  843, 

38  U.  S.  App.  37 410 

v.  Terry,  82  U.  S.  15  Wall. 

580,  21  L.  ed.  236 

405,  408,  409 
v.  Wiswell,  56  Kan.  756.  35 

L.  R.  A.  258- -405,  432,  482 


CASES    CITED. 


xlv 


Myatt  v.  Walker,  44  111.  485 

260,  261,  311,  475 

Myers  v.  Hauger,  98  Mo.  433.. 285,  307 

v.  Knabe,  51  Kau.  720 529 

Mynn  v.  Robinson,  2  Hagg.  Eccl. 

Rep.  169.. 496 

Myrickfl.  Myrick,  67  Ga.  771 747 


N. 


Nace  v.  Boyer,  30  Pa.  99 243,  247 

Nagle  v.  Baylor,  3  Dru.  &  W.  60 

720,  725 
Nailing  v.  Nailing,  2  Sneed,  630..  334 

Nailor  v.  Nailor,  4  Dana,  339 419 

NaphVs  Estate,  134  Pa.  492.. 313,  325 

Estate,  134  Pa.  494 350 

Estate,  46  Phila.  Leg.  Int. 

57  275 

Nash  v.  Hunt,  lie  Mass.  237..".. 

496,  547,  565 
Nave  v.  Newlin,  State,  69  Ind.  108 

557    558 

Neanes  v.  State,  143  Ind.  299 .  533 

Needham  v.  Ide,  5  Pick.  510.. 561,  600 
Negroes  Jerry  v.    Townshend,  9 

Md.   145 539.  541,  585 

Neill  v.  Morley.  9  Ves.  Jr.  478 441 

Neilson  v.  Lafflin,  50  N.  Y.  S.  R. 

277 731 

Nelson's  Case,  39  Minn.  204 587 

Nevillsp.  Nevills,  6  Grant, Ch.  636.  266 
Nevling®.  Com.  98  Pa.  322.  ..126, 
127,  130,  134,  164,  173, 
180,  450,  456,  699,  710,  793 
Newberry  *.  State,  32  Tex.  Crim. 

Rep.  145 466 

Newcomb  ».  Newcomb,  16  Ky.  L. 

Rep.  376 289,  811,  562 

v.  Newcomb,  96  Ky.  120...  495 
■v.  Newcomb,  13  Bush,  544, 

26  Am.  Rep.  222 392 

v.  State,  37  Miss.  383 

126,  131,  450 
Newell  v.  Fisher,  1  Smedes  &  M. 

431,  49  Am.  Dec.  66...  719 

v.  Smith,  23  Ga.  170 401 

Newhard  v.  Yundt,  132  Pa.  324.. 

451,  464,  475,  559,  599,  600 
New  Home  L.  Asso.  v.  Hagler,  29 

111.  App.  437.. 408,  409,  415 
Newhouse  ©.Godwin,  17  Barb.  236.  280 

v.  Yundt,  13i  Pa.  324 310 

Newlin's  Estate,  7  Pa.  Co.  Ct.  648 

312,  313 
New  Phoenix,  The,  1  Hagg.  Adm. 

198 729 

Newton    v.    Carbery,   5    Cranch, 

C.  C.  626.304,  340,  345,  577 


Newton  v.  Central  Vermont  R.  Co. 

80  Hun,  491 770,  775 

v.  Mutual  Ben.  Life  Ins.  Co. 
15  Hun,  595,  Affirmed 

76  N.  Y.426 408, 

404,  409,  534 
New  York  L.  Ins.  Co.  v.  La  Boi- 
teaiix  (Ohio)  5  Bigelow, 
Life  &  Acci.  Ins.  Rep. 

437 761,  763 

Nexsen  v.  Nexsen,  2  Keyes,  232.. 

599,  600 

Nichol  v.  Thomas,  53  Ind.  42 

435,  491,  531 
Nicholas  v.  Kershner,  20  W.  Va. 
251.. 275,  284,  286,  289, 
292,  334,  349,  461,  590,  597 
Nichols  v.  Binns,   1  Swab.  &  T. 

239 296,  315,  371,  479 

v.  Nichols,  31  Vt.  331,   73 

Am.  Dec.  352 392 

v.  State,  8  Ohio  St.  435 

690,  697,  705 
Nichols  &  S.  Co.  v.  Hardman,  62 

Mo.  App.  153 245 

Nimick  v.  Mutual  Ben.  L.  Ins.  Co. 

3  Brewst.  502 407 

Noel®.  Karper,  53  Pa.  97 430, 

515,  725,  767,  779,  783 
v.    Modern     Woodmen    of 
America,   61   111.  App. 

597. 401,  414 

Nonnemacher    v.    Nonnemacher, 

159  Pa.  634 388 

Norfleet  v.  State,  4  Smeed,  345 

698,  701 
Norman  v.  Georgia  Loan  &  T.  Co. 

92  Ga.  295 242,  246,  484 

Norman's  Case,  72  Iowa,  84 

543,  544,  559,  580 

Norris®.  Seed,  3  Exch.  782 536 

v.  Sheppard,  20  Pa.  475 

338,  345,  501 
v.  State,  16  Ala.  776. ...558,  569 
North    Brunswick  Twp.   Bd.    of 
Health  v.    Lederer,   52 

N.  J.  Eq.  675 449 

Northern  P.   R.  Co.  v.  Craft,  69 

Fed.  Rep.  124 

770,  771,  775 
Northwestern  Mut.  L.  Ins.  Co.  v. 
Hazelett,  105  Ind.  212, 

55  Am.  Rep.  192 762 

v.  Muskegon  Nat.  Bank,  122 
U.  S.501,30L.  ed.  1100 

758,  759,  762,  790,  794 
Northwestern  R.  Co.  v.  Craft,  69 

Fed.  Rep.  124 784 

Norton  v.  Chapin,  Com.  19  Phila. 

551 447 


xlvi 


CASES    CITED. 


Norton  e.New  York  Hospital, Peo- 
ple, 3  Abb.  N.  C.  229.. 

609,  611,  612,  613 

v.  Paxton,  110  Mo.  456 

285,  460,  461 

*.  Relly,  2  Eden,  286 259 

Norwood  v.  Marrow.  4  Dev.  &  B. 

L.  442  ..-498.  499,  500,  501 
Nottid.se  v.  Prince,  2  Giff.  246. ..  376 
Nu*sear  v.  Arnold,  13  Serg.  &  R. 

323 -.505,  517 

Nyce  v.  Kirk  bride,  Com.  2  Brewst. 

400 -  443 


O. 


Obear  v.  Gray,  73  Ga.  455 423, 

429,  493,  560,  582,  584 
O'Brien  *.  Dwyer,  45  N.   J.   Eq. 

689 276,  288,  289,  290 

v.  People,  36  N.  Y.  276,  48 

Barb.  274 132.  473, 

564,  701,  710 
Ockendon  v.  Barnes,  43  Iowa,  615 

241,  531 
O'Connell  v.  People,  87  N.  Y.  377, 
41  Am.  Rep.   379,  Af- 
firming   62    How.    Pr. 
436. -450,  457,  458,  472,  474 
O'Connor   v.    Madison,    98   Mich. 

183 350,  460.  463, 

561,  569.  573,  574 
v.  Rempt,  29  N.  J.  Eq.  156-  731 
Odd  Fellows  Mut.  L.  Ins.  Co.  v. 
Robkopp,  94   Pa.   59,  9 
Ins.  L.  J.  787  .—761,  783 
Odell  v.  Buck,  21  Wend.  142.-251,  252 
Odom  v.  Riddick,  104  N.  C.  515, 

7L.  R.  A.  118 449,  451 

O'Donnell  v.  Roilisrer,  76  Ala.  222, 
52  Am.  Rep.  322. -.451, 

459,  478,  481,  483,  485 
Ogden's  Case,  2  N.  Y.  Supp.  345.  342 
Ogilvy  v.  Gregory,  4  "Week.  Rep. 

221 380,  381 

Ogletree  *.  State,  28  Ala.  993-..-  472 
O'Grady  v.  State,  36  Neb.  320.... 

683,  688,  709 
O'Hagan  v.  Dillon,  10  Jones  &  S. 

456 772,  775 

O'Herrin  *.  State,  14  Ind.  420 

_  682,  689,  693 
O'Keefe  v.  Chicago,  R.  I.  &  P.  R. 

CO.  32~Iowa,  467 774 

Oliver  p.  Berry,  53  Me.  206,  87  Me. 

547 398 

*.  Puliam,  24 Fed.  Rep.  127.  400 
O'Neil  v.  Murray,  4  Bradf.  311...  733 
O'Neill  v.  Nolan,  50  N.  Y.  S.  R. 

641 723 


Orr  *.  Pennington  (Ya.)  24  S.  E. 

928 249 

Ortwein  z.  Com.   76  Pa.   414,   18 

Am.  Rep.  420.176,  467,  470 
Osborn  v.  State  (Tex.  Crim.  App.) 

26  S.  W.  625 683,  686 

Osterbout   v.   Shoemaker,  3   Hill, 

513 438,  531 

Otto  *.  Doty,  61  Iowa,  23 304 

Outlaw*.  State,  35  Tex.  481 683 

Overall  v.  Bland,  11  Ky.  L.  Rep. 

371 363,  582,  584 

*.  State,  15  Lea,  672 

478,  485,  486 
Overton  v.  Overton,  18  B.  Mon.  61 

308    3^3 
Owing's  Case,  1  Bland,  Ch.  290.!  424 
Case,  1  Bland,  Ch.   370,  17 

Am.  Dec.  311 8,  19, 

164,  260,  294 

P. 

Paine  *.  Aldricb,  133  N.  Y.  544..  566 
v.  Roberts,  82  N.  C.  451... 

284,  286 
Palmer  *.  Parkburst,  1  Ch.  Cas. 

112 435 

Palmer's  Estate,  24  W.  N.  C.  105.  312 

Estate,  5  W.  N.  C.  542 592 

Panaud  v.  Jones,  1  Cal.  488.. 451,  459 
Pancoast  *.  Graham,  15  N.  J.  Eq. 

294 324,  325.  327,  337 

Pannell  *.  Com.  86  Pa.  260 

460,  465,  550,  578,   596 
Parish  v.  Parish,  42  Barb.  274.274, 1067 

Park  *.  Barron,  20  Ga.  702 383 

Parker  v.  Davis,  8  Jones,  L.  460  _. 

430,  431 
v.  Marco,  76  Fed.  Rep.  510 

241,  254,  255 
*.  Parker,  2  Lee  Eccl.  Rep. 

383 382,  383,  389 

*.  Parker,  52  111.  App.  333. 

791,  792 
Parker's  Case  (1812)  1  Collinson, 

Lunacy,  477.. 130,  139,  467 
Parkhurst   v.    Horsford,    21   Fed. 

Rep.  829 260,   559 

Parnell  v.  Parnell,  2  Phillim.  Eccl.     ' 
Rep.  158,  2  Hagg.  Con- 
sist. Rep.  169 396 

Parramore  r.  Taylor,  11  Gratt.  220  35  7 
Parris  *.  Cobb,  o  Rich.  Eq.  450  .  376 
Parsons  v.  Parsons,  66  Iowa,  754. 

500,  579,  583 
*.  State,  81  Ala.  577,  60  Am. 

Rep.  193 126,  131, 

135,  165,  168,  173,  174, 

179.  466,  470 
Partello  v.  Hoi  ton,  79  Mich.  372..  425 


CASES    CITED. 


xlvii 


Patterson  v.  People,  46  Barb.  625. 

127,  563 

v.  State,  86  Ga.  70... 586 

v.  State,  66  Ind.  185 783 

Patterson's  Case,  4  How.  Pr.  34.. 

431,  432,  435,  767,  768 
Will,  36  N.  Y.  S.  R.  813...  354 
Patton  v.  Patton,  5  J.  J.  Marsh, 

389 345 

Pavey  v.  Wintrode,  87  Ind.  379..  493 
Payn's  Case,  8  How.  Pr.  220,  224. 

419,  429 
Payne  v.  Banks,  32  Miss.  292.451,  459 
v.  State,  5  Tex.  App.  35...  683 
Peabody  v.  Kendall,  145  111.  519.. 

251,  252,  253 
Peacock  v.  Evans,  16  Ves.  Jr.  512.  250 
Peake  v. Van  Lewven,59  Iowa,764.  272 
Pearce  v.  Chamberlain,  2  Ves.  Sr. 

33.. 380 

Pearman  v.  Pearman,  1  Swab.  & 
T.  601,  29  L.  J.  Prob. 
N.  S.  54,  8  Week.  Rep. 

274 751 

Pearson's  Case,  2  Lewin,  C.  C.  75.  684 
Peases.  Burrowes,  86  Me.  153... 

612,  613,  614 
Peaslee  v.  Robbins,  3  Met.  164.263,  491 
Peasley  v.  Safety  Deposit  Life  Ins. 

Co.  15  Hun,  227 404 

Peck  v.  Cary,  27  N.  Y.  9,  84  Am. 

Dec.  220. 736,  737,  738 

Peck's  Case,  42  N.  Y.  S.  R.  898..  738 
Pedler  v.  Paige,  1  Moody  &  R.  258.  602 

Peebles?).  Case,  2  Bradf .  226 604 

Peeples  v.  Stevens,  8  Rich.  L.  198, 

64  Am.  Dec.  750..  .504,  505 
Peery  v.  Peery,  94  Tenn.  328.498,  500 
Peiffera.Weishaupt,  13  Daly,  161.  414 
Pelamourges  v.  Clark,  9  Iowa,  1.. 

280,  347,  557,  560,  561,  583 

Pendlay  v.  Eaton,  130  111.  69 

320,  462,  464 
Pendleton's  Case,  1  Connelly,  480. 

328,  440 
Penninerton  v.  Stanton,  125  Mo.  658  253 
«. Thompson, 5  Del.  Ch. 328..  434 
Pennypacker  v.  Pennypacker  (Pa.) 

7  Cent.  Rep.  532... 449,  453 
Pennsylvania  v.  McFall,  1  Addi- 
son (Pa.)  255 664,  702 

Pennsylvania  R.  Co.  v.  Books,  57 

Pa  339  770 

Pensyl's  Case,"  157  Pa"  465V."  313",  325 
People  v.  Ah  Ying,  42  Cal.  18.193,  194 
v.  Augsbury,  97  N.  Y.  501. 

543,  555 
v.  Barber,  115  N.  Y.  475... 

184,  536, 540.  553 
t>.  Batting,  49  How.  Pr.  392 

683,  698 


People   v.    Bawden,    90   Cal.   195 

455,466 

v.  Belencia,  21  Cal.  544 

688,  698,  699,  701,  702 
v.  Bell,  49  Cal.  485.455,  466,  777 
v.  Bemmerly,  98  Cal.  299.. 

455,  466 

v.  Best,  39  Cal.  690 163 

v.  Blake,  65  Cal.  275 

682,692,  785 
v.  Borgetto,  99  Mich.  336... 

562,  569,  574,  580 
v.  Bumberger,  45  Cal.  650..  180 

v.  Calton,  5  Utah,  451 

131,  456,  690 
v.  Carnel,  2  Edm.  Sel.  Cas. 

200 128 

v.  Carpenter,  102  N.  Y.  245, 

38  Hun,  490. 172,  616 

v.  Casey,  2N.  Y.  Crim.  Rep. 
7,    Reversed    2  N.    Y. 

Crim.  Rep.  194 131, 

450,  456,  472 
v.  Cassiano,  30  Hun,  388...  693 
v.  Cavanaugh,  62  How.  Pr. 

187.. 683 

v.  Clendenin,  91  Cal.  35 

162,  172,  181,  490 
v.  Coffman,  24  Cal.  230.134,  466 
v.  Coleman,  1  N.  Y.   Crim. 

Rep.  1. 131, 

172,  450,  456,  472 

v.  Conroy,  33  Hun.  119 164 

v.  Conroy,  97  N.  Y.  67 566 

v.  Conrov,    2  N.  Y.    Crim. 

Rep?  247 698 

v.  Cummins,  47  Mich.  334.. 

133,  691,  713,  715 
v.  Degraff,  1  Wheeler,  Crim. 

Cas.  203 180 

v.  Dillon,  8  Utah,  92 

450,  456,  466,  694 
v.  Divine,  1  Edm.  Sel.  Cas. 

596 127,  172 

v.  Durfee,  62  Mich.  487. 127,  175 
v.  Eastwood,  14  N.  Y.  562.. 

667,  688,  693,  793 
v.  Eubanks,  86  Cal.  295....  781 

v.  Farrell,  31  Cal.  576 

193,  195,  197,  199,  200,  489 

v.  Ferris,  55  Cal.  588 

682,  685,  690,  710 

v.  Fine,  77  Cal.  147 573 

v.  Finley,  38  Mich.  482 

127,  174,  175,  472,  558, 

591,  593,   6b2 

D.  Fish,  125  N.  Y.  136 

564,  689,  694,  695 

v.  Fisher,  23  111.  293 458 

v.  Foy,  138  N.  Y.  664 127 

v.  Francis,  38  Cal.  183.. 482,  484 


xlviii 


CASES    CITED. 


People  x.  Fuller,    2  Park.  Crim. 

Rep.  16... _.6S3,  701 

x.  Garbutt,  17  Mich.  9,  97 

Am.  Dec.  162 450, 

458,  466,  471,  472,  491, 

527,  682,  685,  709 

x.  Haley,  48  Mich.  495 688 

x.  Hamilton,    62    Cal.    377, 

Overruling    People    v. 

Wreden,  59  Cal.  392. ..  469 
x.  Hammill,  2  Park.  Crim. 

Rep.  223__672,  683,  693,  697 
x.  Harper,  1  Edm.  Sel.  Cas. 

180... 608 

x.  Harris,  29  Cal.  678 

687,  688,  693 
x.  Hawkins,  109  N.  Y.  408. 

501,  502,  552 
x.  Hobson,  17  Cal.  424. .131,  164 
x.  Hoin,  62  Cal.  120,  45  Am. 

Rep.  651 172 

x.  Holmes  (Mich.)  69  N.  W. 

501 178,  180,  552,  553 

x.  Hurley,  8  Cal.  390...  126,  127 

0.  Hurtado,  63  Cal  288 

163,  165,  514,  530 
v.  Irvine,     Lincoln,     Neb., 

Crim.  Court,  1892 977 

x.  Jones,  63  Cal.  168 787 

x.  Jones,  2  Edm.  Sel.  Cas.  88 

683,  697 
x.  Kemmler,  119  N.  T.  580. 

538.  590,  703 
x.  Kernaghan,  72  Cal.  609. .  171 
x.  King,  27  Cal.  507,  87  Am. 

Dec.  95 693,  698 

x.  Kirby,    2    Park.     Crim. 

Rep.  28.. 450 

x.  Kleim,  1  Edm.  Sel.  Cas. 

13... 135,  148,  172 

v.  Kloss(Cal.)  47  Pac.  459..  180 

x.  Kloss,  115  Cal.  567 

685,  693,  788,  1067 
«.  Lake,  12  N.  Y.  358,  Aff'g 

lPark.  Crim.  Rep.  495. 

530,  542,  555,  590,  591 
«.  Lake,  2  Park.  Crim.  Rep. 

215 8,  183,  185,  514,  590 

x.  Lane,  100  Cal.  379 694 

x.  Lane,  101  Cal.  513. ..513,  573 
x.  Langton,  67  Cal.  427.701,  702 

x.  Lavelle,  71  Cal.  351 572 

x.  Lee  Fook,  85  Cal.  300... 

194,  195,  489 
x.  Leonardi,  143  N.  Y.  360. 

688,  699 
x.  Lewis,  36  Cal.  531... 682,  695 
v.  McCann,  3  Park.    Crim. 

Rep.  272 465,  794 

v.  McCann,  16  N.  Y.  58,  69 

Am.  Dec.  642 471,  472 


People  v.  McCarthy  (Cal.)  46  Pac. 

1073 180 

x.  McCarthy,  115  Cal.  255.. 

455,  573,  583 
x.  McDonell,  47  Cal.  134... 

131,  171,  455,  466,  467 
x.  McElvaine,  121 N.  Y.  250.  546 

x.  McNulty,  93  Cal.  427 

449,455,  466 

x.  March,  6  Cal.  543 181 

x.  Marseiler,  70  Cal.  98 690 

x.  Messersmith,  57  Cal.  575.  466 
x.  Messersmith,  61  Cal.  246. 

184,  469 
x.  Miles,  143  N.  Y.  383  ....  513 
x.  Mills,  98  N.  Y.  176....  1. 

171,  695,  701,  712 

x.  Moice,  15  Cal.  329 198 

x.  Monteith,  73  Cal.  7 792 

X.  Montgomery,  13  Abb.  Pr. 

N.  S.  207 125,  132, 

171,  172,  189,  190,  478, 

479,  529,  594,  1067 
x.  Mortimer, 48  Mich. 37. 127,  175 
x.  Myers,  20  Cal.  518. 

455.466,  470 
x.  Nichol,  34  Cal.  211 

682,  687,  688,  698,  701,  707 
x.  O'Connell,  62  How.  Pr. 
436 125,  131,  450, 

456,  683,  710 
x.  Odell,  IDak.  189 

682,  686,  688,  704 
x.  Osmond,  138  N.  Y.  80... 

189,  520,  552,  567 
x.  Packenham,  115  N.  Y.  200, 

566,  793 

x.  Parker,  67  Mich.  222 692 

x.  Phelon,  93  Cal.  Ill 692 

x.  Pico,  62  Cal.  50 132, 

133,  180,  200,  528 

v.  Pine,  2  Barb.  566 133, 

168,  169,  17S,  191,  450, 

456.467,  683 
x.  Porter,    2    Park.    Crim. 

Rep.  14... ...683,  690 

x.  Rbinelander,     2    K    Y. 

Crim.  Rep.  335 196 

x.  Robinson,  1  Park.  Crim. 

Rep.    649,    Affirmed    2 

Park.  Crim.  Rep.  285.. 

450,  456,  683,  685 
x.  Robinson,  2  Park.  Crim. 

Rep.  235 683, 

688,  696,  707,  711 
x.  Rogers.   18  N-.  Y.  9,  72 

Am.  Dec.  484 683, 

685,  689,  702,  710 
x.  Sadie  McMullen, Oyer  and 

Terminer,   Buffalo,   N. 

Y.  1891 1057 


CASES   CITED. 


xlix 


People  v.  Sanford,  43  Cal.  29 

557,  558,  568 
v.  Schmitt,  106  Cal.  48..  168. 

182,  199,  455,  484,  530,  573 

v.  Slack,  90  Mich.  448 186 

v.  Smiler,  125  N.  Y.  717...  544 

v.  Smith,  31  Cal.  466 528 

v.  Smith,  57  Cal.  130 480 

i>.  Sprague,  2   Park.  Crim. 

Rep.  43 99,  172,  185 

v.  Sutton,  73  Cal.  243 -555 

v.  Taylor,  138  N.  Y.  398... 

166,169,  170 
®.  Thurston,  2  Park.  Crim. 

Rep.  49..542,  544,  586,  591 

v.  Travers,  88  Cal.  233 

449,  455,  466,  710,  713 
v.  Tripler,  1  Wheeler,  Crim. 

Cas.  48 181 

v.  Vincent,  95  Cal.  425 701 

v.  Walker, 38  Mich.  158.688,  691 
v.  Walter,  1  Idaho,  386--.. 

134,  179,  450,  455,  466 
v.  Waltz,  50  How.  Pr.  204. 

130,  167,  171,  172,  178 

v.  Ward,  105  Cal.  335 

171,  455,  466,  469,  533 
v.  Webster,  59  Hun,  398... 

179,  552,  596 
v.  Whedon,  2  N.  Y.  Crim. 

Rep.  318. 489 

v.  Willey,    2    Park.    Crim. 

Rep.  19 683 

1).  Williams,  43  Cal.  344.... 

682,  685,  698,  701,  703 
v.  Wilson,  49  Cal.  13. -.466,  469 
v.  Wilson,  55  Mich.  506  ... 

682,  684 
«.  Word,  126  N.  Y.  249_... 

509,  519,  524 
v.  Worthinffton,     105    Cal. 

166 523 

v.  Wreden,  59  Cal.  392,  12 
Am.  Rep.  682,  Overruled 
by  People  v.  Hamilton, 

62  Cal.  377 466, 

469,  558,  794 

v.  Young,  102  Cal.  411 688 

People,  Clough,   v.  Levy,  71  Cal. 

618 180 

Peresse's  Case,  1  Malloy,  219 427 

Perkins  v.  Perkins,  39  N.  H.  163.. 

449,  459,  460,  604 
v.  Scott,  23  Iowa,  237.. 258,  259 
Perkins's  Case,  2  Johns.  Ch.  124..  534 
Perrine's  Case,  41  N.  J.  Eq.  409.. 

421,  422,  425 
Perry  v.  Pearson,  135  111.  218.. 242,  244 

v.  State,  87  Ala.  30 181 

Peters  v.  Peters,  101  Mich.  291...  263 
Pettitt  v.  Pettitt,  4  Humph.  191  ..  346 


Petrie  v.  Petrie,  25  N.  Y.  S.  R.  309 

56«,  598.  599,  602 
Pettes  v.  Bingham,  10  N.  II.  515.. 

451,  459 
Pettigrew  v.  State,  12  Tex.  App. 

225 187 

Pflueger  v.  State,  46  Neb.  493 

192,570,  583 
Phadenhauer  v.  German ia  L.  Ins. 
Co.  7    Heisk.    567,    19 

Am.  Rep.  623 408,  410 

Phebea.  Prince  Walk  (Miss.)  131..  608 
Phelan  v.  Gardner,  43  Cal.  306... 

719,  778 
Phelps  v.  Com.   17   Kv.  L.   Rep. 

706 18*2,  450,  455, 

466,  547,  557,  558 

v.  Hartwell,  1  Mass.  71 

460,461,  503 
Philadelphia  Trust  &  S.  D.  Co.  v. 
Drinkhouse,    17  Phila. 

23 289,291,292, 

295,  296,  298,  452,  459, 

475,  492,  493,  734 
Phillips  v.  Chater,  1  Dem.  533.274,  301 
v.  Louisiana  Equit.  L.  Ins. 
Co.  26  La.  Ann.  404, 21 

Am.  Rep.  549 405, 

408,  409,  416 

v.  Moore,  11  Mo.  600 719 

v.  Phillips,  81  Ky.  329 289 

Physio-Med.    Col.    v.   Wilkinson, 

108  Ind.  314..  251,  478,  487 

Pickerell  v.  Morss,  97  111.  220.. 243,  454 

Pickett  v.  Sutter,  5  Cal. 412... 720,  721 

Pidcock   v.   Potter,  68  Pa.  348,  8 

Am.  Rep.  181.. 291,  294, 

288,  289,  290,  492,  528,  600 

Pierce  v.  Pierce,  38  Mich.  412 

340,  509,  734,  739,  779,  793 
v.  State,  53  Ga.  365.... 787,  792 
v.  Travelers'  L.  Ins.  Co.  34 

Wis.  389 407,  411 

Pigg«.  State,  43  Tex.  108. .. .536,  537 
Pigman  v.  State,  14  Ohio,  555,  45 

Am.  Dec.  558 683, 

686,687,  698 

Pike  v.  Pike,  104  Ala.  642 265, 

266,  370,  454,  477,  478, 

480,481,  488 

Pile  v.  Pile,  94  Ky.  308 391,  394 

Pilling  v.  Pilling,  45  Barb.  86....  325 

Pinney's  Will,  27  Minn.  280 

494,  507,  509,  531,  557, 

559,  561,  582 
Pinocvi's  Case,  5  City  Hall  Rec. 

123 181 

Piper  v.  Hoard,  107  N.  Y.  67.. 399,  400 

Pirtle  v.  State,  9  Humph.  663 

683,  698,  701 
Pistorius  v.  Com.  84  Pa.  158 163 


4a 


1 


CASES    CITED. 


Pitt  v.  Smith,  3  Campb.  33.. 

719,  720,  730 
Pittard  v.  Foster,  12  111.  App.  132 
286,  287,  430.  431,  433, 

542,  557,  559,  573 
Plake  v.  State,   121    Ind.  433,    16 

Am.  St,  Rep.  408- -178,  471 
Plimley  v.  Plimley,  35  N.  J.  Eq. 

18 . 755 

Pockett  o.  Sutter,  5  Cal.  412 682 

Polin  v.  State,  14  Neb.  540 558,  568 

Polk  v.  State,  19  Ind.  170,  81  Am. 

Dec.  382 471,  474 

Pollock  t.  Horn,  13  Wash.  626.--  401 
Poole  v.  Richardson,  3  Mass.  330, 

565,  600 

Porritta.  Porritt,  16  Mich.  140.--  743 

Porter  v.  Campbell,  2  Baxt.  81...  341 

v.  Porter,  3  Humph.  586. ..  399 

v.  Throop,  47  Mich.  313— 

582,  584 
Portsmouth     v.     Portsmouth,     1 
Ha^er.  Eccl.  Rep.  355. . 

386,  430 
Potter  v.  Jones,  20  Or.  239,  12  L. 

R.  A.  161 295,  297,  300 

9.  McAlpine.  3  Dem.  108— 

297,  300,  340,  451,  459 
9.  Woodruff,  92  Mich.  8— 

272.  1067 
Potts  v.  House,  6  Ga.  324,  50  Am. 

Dec.  329 275,276, 

278,  280,  284,  293,  331, 
335,  343,  460,  463,   464, 
537,  538,  559,  561,  573,  601 
Powell  9.  Powell,  27  Miss.  783  — 

384,  389 
9.  Powell,  18  Kan.  371,  26 

Am.  Rep.  774 382, 

386,  387,  391,  394 

v,  Powell,  27  Miss.  783 451 

9.  State,  25  Ala.  21 572, 

581,  583,  588 

9.  State,  37  Tex.  348 126 

Power  9.  Power,  11  Jur.  N.  S.  800, 
4  Swab.  &  T.  173,  34  L. 
J.  Prob.  N.  S.  137,  13 

Week.  Rep.  1113 750 

Powers  9.  Powers,  20  Neb.  529. .. 

751,  753,  754 
Prather  v.  McClelland,  76  Tex.  574 
281,  284,  289,  291.  295, 
296,  309,  310,  326,  327, 

505,  543 
9.  Naylor,  1  B.  Mon.  244... 

245,  246,  268,  534 

Pratte  v.  Coffman,  33  Mo.  76 

498,  499,  502 

Prendergast's  Case 99,  866 

Prentice     v.    Achorn,     2     Paige, 

30 719 


Prentis    9.    Bates,    88   Mich.    567, 
Affirmed  93  Mich.  234, 

17  L.  R.  A.  494 

277,  282,  284,  341,  345, 
351,  354,  358,  459,  460, 
461,  476,  511,  525,  527, 
540,  544,  545,  552,  553, 
555,  561,  573,  574,  578,  584 

Prescott's  Case,  N.  H 150 

Prewettt\  Coop  wood,  30  Miss.  369.  259 
Price  9.  Berrington,  2  Beav.  286. .  438 
9.  Philadelphia  W.  &  B.  R. 
Co.  84  Md.  506,  36  L. 

R.  A.  213 ...769,  774 

9.  Price,  1  DeG.  M.    &  G. 

308.  .  259 

9.  Richmond  &  D.  R  Co .38 

S.  C.  199 541,  553, 

557,  568,  580 
Prine  9.  Prine,  36  Fla.  676,  34  L. 

R.  A.  87 383,  741 

Prinsep  v.  Sombre,  10  Moore,  P.  C. 

232.-295,  330,  430,  486,  591 
Probst's  Will,  2  Lane.  L.  Rev.  97.  279 
Pugh  9.  State,  2  Tex.  App.  539— 

683,  704 

Puryear  9.  Reese,  6  Coldw.  21 

293,  297,  459,  478,  482, 

536,  538,  557,  559,  601 


Q- 


Queen  9.  Crouch,  1  Cox,  C.  C.  94.  606 
9.  Goode,  7  Ad.  &  El.  536_.  197 
v.  Ryan,  2  Cox,  C.  C.  15— 

201,  202 
9.  Whitehead,  L.  R.  1  C.  C. 

33 609 

Quteenberry  9.  Quisenberry,  14  B. 

Mon.  481... 340,  502 


R. 

Rafferty  9.  People,  66  111.  118 

682,  689,  693 

Raean  9.  Raean,  33  Ga.  106 288 

Rafston  9.  Turpon,  129  U.  S.  663, 

32  L.  ed.  747.-269,  271,  375 
Rambler  9.  Tryon,  7  Serg.  &  R.  90, 

10  Am.  Dec.  444 

500,  557,  559,  570,  580 
Ramsdall's  Case,  20  N.  Y.  S.  R. 

466,  51  Hun,  636 329 

Ramsdell  v.  Viele,  6  Dem.  244 321 

Rankin  9.  Rankin,  61  Mo.  295 

340,  496,  592 
Rannells  v.  Gerner,  80  Mo.  475. .. 

431,  535 


CASES    CITED. 


Rapplee's  Case,  66  Hun,  5/58 

355,  564,  1068 

Rarick  v.  Ulmer,  144  Ind.  25 560 

Kathbun  v.  Rathbun,  40  How.  Pr. 

328... 303,  396 

Rather  v.  State,  25  Tex.  App.  624 

717,  779 
Rawdon  v.  Rawdon,  28  Ala.  565 

382,  386,  390 

Rawson's  Case. .._.-_     977 

Raymond  v.  Vaughn,  128  111."  256 

4  L.  R.  A.  440  '  380 

v.  Vaughn,  17  111.  App.  144     380 
v.  "Wathen,  142  Ind.  367 

252,  480 
Raynett  v.  Baluss,  54  Mich.  469..  245 
Reagan  v.  State,  28  Tex.  App.  227 

707,  717 
Real  v.  People,  42  N.  Y.  270.. 564,  787 
Redden  v.  Baker,  86  Ind.  191.431,'  432 
Reece  v.  Pressey,  2  Jur.  N.  S.  380.  367 
Reed  v.  Harper,  25  Iowa,  87...  784 
v.  State,  62  Miss.  405..  541 

548.  550,  557,  558,  569J  586 
Reed's  Case,  2  Connoly,  403  734 

Will,  2  B.  Mon.*79*._._284,  285 
Reel  v.  Reel,  1  Hawk.  248,  9  Am. 

Dec.  632 498,  500 

Reese.  Stille,  38  Pa.  138 309 

Reeves.  Bonwill,  5  Del.  Ch.  l._. 

449,453 
Reg.  <o.  Barratt,  12  Cox,  C.  C.  498    201 
v.  Barton,  3  Cox,  C.  C.  275 

171,  172 
v.  Berry,  34  L.  T.  N.  S.  590 

193,  196 
v.  Bishop,  14  Cox,  C.C.  404.  445 
v.  Burton,  3  Fost.  &  F.  772 

167,  171,  586 
v.  Camplin,  1  Car.&  K.  746, 

1  Den.  C.  C.  89 718 

v.  Connolly,  26  U.  C.  Q.  B. 

317 201,'  202 

v.  Cruse,  8  Car.  &  P.  541, 

Ray,  Med.  Jur.  564.664,  688 
v.  Dart,  14  Cox,  C.  C.  143. .  591 
v.  Davies,  1  Fost.  &  F.  69.. 

130,  133 
n.  Davis,  14  Cox,  C.  C.  563, 
28Moak,  Eng.  Rep.  657 

710,  713 
v.  Dixon,  11  Cox,  C.  C.  341 

183,  684,  695,  713,  789 
v.  Doody,  6  Cox,  C.  C.  463 

133,  684,  707 
v.  Dwerryhouse,  2  Cox,   C. 

C.  446... 195 

v.  Fletcher,  Bell,  C.  C.  63,  8 

Cox,  C.  C.  131. 201 

t.  Fletcher,   10  Cox,   C.   C. 

248.. 2021 


Reg.  v.  Frances,  4  Cox,  C.  C.  57, 
Overruling  McNagh- 
ten's  Case,  1  Car.  &  K. 

130,  note 540,  541 

v.  Gamlen,  1  Fost.  &  F.  90 

684,  688,  702 
v.  Haynes,  1  Fost.  &  F.  666 

171,  172 
v.  Higginson,    1  Car.  &  K. 

129. .130,  141,  142.  171,  467 
v.  Hill,  2  Den.  C.   C.  254,  5 
Cox,  C.  C.  259,  5  Eng. 

L.  &Eq.  547 .607, 

608,  611,  613,  614 
v.  Law,  2  Fost.  &  F.  836...  190 
v.  Layton,  4  Cox,  C.  C.  149 

134,  171,  456,  467,  586 
v.  Leigh,  4  Fost.  &  F.  915.. 

187,  714 
v.  Lurton,  6  Cox,  C.  C.  385.  457 
v.  McLeod,  2Swin.  (Sc.)88.  186 
v.  Manchester,  2  Jur.  N.  S 

1205 398 

v.  Marshall,  Car.  &  M.  147    611 
v.  Mary  R.  (1887)  Palles,  C. 
B.,  Cited  by  N.   Kerr, 
"Inebriety,"  2d  ed.  395.  708 
v.  Monkhouse,  4  Cox,  C.  C 

55 684,  686,  704, 

777,  782,  787 
v.  Moore,  3  Car.  &  K.  319, 

16  Jur.  750 684,  707 

0.  Mountain,  Leed's  Assizes 

Apr.  1888,  Pollock,  B.  709 
v.  Oxford  (1840)  9  Car.  &  P 
525.... 18,  23,  134,  140, 

141,  147,  171,  558 
v.  Pate,     1    Bennett  &  H. 
Lead.    Cas.    96,     Ray, 
Med.  Juris.  §  309 

169,  170,  171 
v.  Pearce  (1840)  9  Car.  &  P. 

667 92,  181 

v.  Pressy,  10  Cox,  C.  C.  635  201 
v.  Richards,  1  Fost.  &  F.  87 

177,  178,  179,  586 
v.  Roberts,  Ray,  Med.  Jur. 

§10.... -_  126 

v.  Robertson,  1  Swin.  (Sc.) 

15 _.-  197 

t.  Southey,  4  Fost.  &  F.  864 

182,  193 
v.  Stokes,  3  Car.  &  K.  185 

141,  171,  456,  467 
v.  Townley,  3  Fost.  &    F. 
839-. 132,  133.  134,  167, 

168,  171,  456,  467 
v.  Tucket.  1  Cox,  C.  C.  103, 

4L.  T.  50-. 527 

v.  Turton,  6  Cox,  C.  C.  385 

193,  197 


lii 


CASES    CITED. 


Reg.  v.  Vaughan,   1  Cox,  C.  C.  80 

128,  132 
v.  Vyse,  3  Fost.  &  F.  247 ..  191 
Reichard  v.  Manhattan  L.  Ins.  Co. 

31  Mo.  518 ...760,  763 

Reichenbach  v.  Ruddach,  127  Pa. 
564..  2*7,  292,  307,  310, 
316,  317,  318,  332,  348, 

362,  483,  527 
Reinicker  v.  Smith,  2  Harr.  &  J. 

421 723 

Reinskopf  v.  Rogge,  37  Ind.  207.. 

719    722 
Renfro  v.  Waco  (Tex.)  33  S.  W"'. 

766 381 

Reniger  v.  Fogossa,  1  Plowd.  19..  684 
Renn  v.  Samos,  33  Tex.  760. .364,  461 
Rennie's  Case,  1  Lewin,  C.  C.  76 

684,  709,  713 
Respublica  v.  Weidle,  2  U.   S.  2 

Dall.  88,  1  L.  ed.  301 ..  683 

Restine  Case,  3  W.  N.  C.  27 286 

Revoir  «.  State,  82  Wis.  295 

133,  135,  472 
Rex  v.  Carroll,  7  Car.  &  P.  145. __ 

672,  685,  698,  701 
v.  Chater,  13  Shaw's  J.  P. 

766 201 

v.  Dyson,  7  Car.  &  P.  305.. 

196,  558 
i).  Grindley,  Cited  in  1  Rus- 
sell on  Crimes,  Am.  ed. 

*8 698,  762 

v.  Jones,  1  Leach,  C.  C.  120.  1C6 
v.  Kelly,  Cited  in  Shelf ord 

on  Lunacy,  399 385 

v.  Meakin,  7  Car.  &  P.  297 

684,  696,  697,  706 
r>.  Offord  (1831)  5  Car.  &  P. 
168.. ..18,  23,  132,  134, 

140.  465 
v.  Pritchard,  7    Car.   &  P. 

303 196 

«.  Searle,  1  Moody  &  R.  75 

540,  591 
t.  Spilsbury,    7  Car.  &  P. 

187 674,  791 

v.  Thomas,  7  Car.  &  P.  817 

684,  696,  702 
v.  Wright,  Russ.  &  R.  C.  C. 

456 540 

Reynolds  v.  Adams,  90  111.  134.  32 

Am.  Rep.  15.. 498,  499,  514 
v.  Dechaums,    24  Tex.  174, 

76  Am.  Dec.  101  ..720,  723 
v.  Reynolds,  44  Minn.  132. .  744 
«.  Root,  62  Barb.  250. .277, 

288,  289,  290,  335,  353,  362 
Rhodes  v.  Bates,  L.  R.  1  Ch.  252.  248 
v.  Vinson,    9   Gill.    169,    52 
Am.  Dec.  685.. 374 


Rice  v.  Rice,  50  Mich.  448,  53  Mich. 
432.. 233,  276,  283,  298, 
331,  353,  437,  512,  533, 
537,  557,  559,  561,  582, 

584,  599 
v.  Rice,  127  Pa.  181... 498, 

499,  501,  502 

Rich  v.  Bowker,  25  Kan.  7 463 

v.  Cary,  27  N.  Y.  9 734 

Richards  v.  Pitts,  124  Mo.  602...  250 
v.  Richards,  19  111.  App.  465 

745,  746,  748 
Richardson  v.  Smart,  2  Mo.  App. 

Rep.  1107 ...375,  483 

v.   Strong,  13  Ired.  L.  106, 

55  Am.  Dec.  430 722 

Richmond's  Appeal,  59  Conn.  226 

350,  581 

Ricketts  v.  Joliff,  62  Miss.  440 

252,  253,  370,  371,  449, 

453,  478,  480 
Ridell  v,  Johnson,  26  Gratt.  152.. 

461,  476 
Rider  v.  Miller,  86  N.  Y.  507.... 

436,  438,  531,  535,  566 
Ridgeway  v.  Darwin,  8  Ves.  Jr.  65 

420,  422 
Ridley  v.  Lamb,  10  U.  C.  Q.  B.  354  770 
Rigg  v.  Wilton,  13  111.  15,  54  Am. 

Dec.  419 ..322,  323,  460,  475 
Riggs  v.  American  Home  Ins.  Soc. 

35  Hun,  656.. 295,  301 

v.  American  Tract  Soc.  95 

K  Y.  503 296,  302,  376 

Right  r>.  Price,  1  Dougl.  241 604 

Riley  v.  Hartford  L.  &  A.  Ins.  Co. 

25  Fed.  Rep.  315 412 

Ripley  v.  Babcock,  13  Wis.  425. .. 

265,  269,  481 
Rippey  v.  Gant,  4  Ired.  Eq.  443 .. 

241.  243,  248,  437,  438 
Ritter  v.    Mutual  L.  Ins.  Co.  70 

Fed.  Rep.  954 405,  408 

Rivara  v.   Ohio,  3  E.  D.   Smith, 

364 613 

Rivard  v.  Rivard  (Mich.)  2  Det.  L. 

N.  1003 302,  585 

Roberts  v.  People,  19  Mich.  401. . 
671,  682,  688,  689,  694, 

696,  704,  705,  709 

«.  State,  3  Ga.  310 23, 

131,  169,  174 
v.  Trawick,  13  Ala.  68,  Over- 
ruled   by    Hughes    v. 
Hughes,  31  Ala.  519. .. 
495,  497,  505,  561,  569,  584 
Robertson  v.  Lain,  19  Wend.  650..  401 

v.  Lyon,  24  S.  C.  266 423 

Robeson  v.  Martin,  93  Ind.  420...  443 
Robinett  v.  Ship  Exeter,  2  Rob. 

Adm.  261 729 


CASES    CITED. 


liii 


Robinson  v.  Adams,  62  Me.  369,  16 

Am.  Rep.  473 298, 

301,  306,  309,  310,  460, 
461,  476,  492,  493,  600,  601 
v.  Allbee,  1  Ohio  Dec.  19  ..  271 
v.  Dana,  16  Vt.  474. ...608,  609 
v.  Fitchburg  &  W.  R.  Co.  7 

Gray,  92 785 

v.  Hutchinson,  26  Vt.  38,  60 

Am.  Dec.  298 498,  501 

o.  Robinson,  39  Vt.  267. ...  430 
i).  State,  113  Ind.  510. .682,  691 
Roblin  v.  Roblin,  28  Grant.   Ch. 

(U.  C.)  439-741,  743,752,  754 
Rock  Island  v.  Vanlandochoot,  78 

111.  485 773 

Rodd  v.  Lewis,  2  Lee,  Eccl.  Rep. 

176 429,  440 

Rodgers  v.  Rodgers,  56  Kan.  483 . .  487 
v.  State  (Tex.  Crim.  App.)28 

S.  W.  685 129 

Rodgers's  Estate,  19  W.  N.  C.  383 

286,  289,  291,  294,  359 
Rodman  v.  Zilley,  1  N.  J.  Eq.  320.  728 
Rodriguiz  v.  State,  20  Tex.  App. 

542 202 

Roe  v.  Taylor,  45  111.  485 288, 

296,  559,  579 
Rogers  v.  Diamond,  13  Ark.  475..  311 
v.    People,   3    Park.    Crim. 

Rep. 633.-683,  688,  693,  694 
v.  Rogers,  2  B.  Mon.  324...  505 
v.  State,  33  Ind.  543.... 524, 

767.  801,  805 
«.  Walker,  6  Pa.  371,  47  Am. 

Dec.  470.. 430,  431,478,  480 
Rogers's  Case,  2  Greenl.  Ev.  §  372.  150 

Case,  5  N.  J.  Eq.  46 441,442 

Case,  9  Abb.  N.  C.  141 423 

Rollwagen  v.  Rollwagen,  5  Thomp. 

&C.  402 339,565,  566 

Root  v.  Davis,  10  Mont.  228 756 

Rose  v.  Rose,  9  Ark.  507 743 

Ross  v.  Chester,    1    Hagg.    Eccl. 

Rep.  227 337 

v.  Christman,  1  Ired.  L.  209.  331 
1).  McQuiston,  45  Iowa,  145. 

493,  496,  498,  501,  502 
v.  State,  62  Ala.  224....  682, 

684,  686,  703,  713 

Ross's  Case,  87  N.  Y.  514 564,  566 

Roswell  v.  Com.  20  Gratt.  860 698 

Rothrock  v.  Rothrock,  22  Or.  551.  355 
Rottenbure:h  v.  Fowl  (N.  J.  Ch.) 

26  Atl.  338 721,  724,  733 

Rowland   v.   Sullivan,  4  Desauss. 

Eq.  518 331 

Rowson's  Estate,  4  Pa.  Dist.  R.  91, 

Affirmed  in  175  Pa.  154.  312 
Rubright  v.  W.  Pa.  Hospital,  Com. 

SPittsb.  299.. 425,  443,  445 


Rude  v.  Nass,  79  Wis.  321 660 

Rulet\  Maupin,  84  Mo.  587.. 499,  501 
Runkle®.  Gates,  11  Ind.  95.. 276.  286 
Runyan  v.  Price.  15  Ohio  St.  1,  86 

Am.  Dec.  459 464, 

587,  588,  589,  603 

Rush  v.  Meeee,  36  Ind.  69.... 278, 

291,  295.  296,  303,  344, 

449,  477,  530,   552,  554, 

558,  579,  584,  587,  590, 

598 
Russell  v.  Lefrancois,  8  Can.  S.  C. 

335 380,  479 

v.  State,  53  Miss.  367... 132 

457,  472,  489,  546,  548,  549 

Russell's  Case,  1  Barb.  Ch.  38 427 

Rutherford  v.  Morris,  77  111.  397.. 

276,  284,  337,  502,  592 
v.  Ruff,  4  Desauss.  Eq.  (S. 

C.)350 732,  740 

Rutland  v.  Gleaves,  1  Swan,  198.. 

739,  777,  807 

Ryan  v.  Ryan,  9  Mo.  539 748 

Ryerson  v.  Adams,  6  N.  J.  Eq.  618 

731,  740 
Ryman  «.  Crawford,  86  Ind.  262.. 

558,  571 


S. 


Sabalot  v.  Populus,  31  La.  Ann. 

854... 387 

Sabin  v.  Senate  of  Nat.  Union,  90 

Mich.  177 411 

Sacramento  Sav.  Bank  v.  Spencer, 

53Cal.  737 401 

Sadley  v.  Lee,  6  Beav.  324.... 379,  380 
Sagar  v.  Hogmire  (Mich.)  2  Det. 

L.  N.  894 561 

Sage  v.  State,  91  Ind.  141.125,  163,  522 
St.  George  v.   Biddeford,  76  Me. 

593.-8,30,241,384,385,  388 
St.  Leger's  Appeal,  34  Conn.  434, 

91  Am.  Dec.  735... 286,  291 
St.    Louis  Mut.  Life  Ins.    Co.  it. 

Graves,  6  Bush.  268.405,  557 
Salentine  v.  Mutual  Ben.  L.  Ins. 

Co.  24  Fed.  Rep.  159..  411 
Salisbury  v.  Aldrich,  118  111.  199.. 

330,  331 
Samuel  v.  Marshall,  3  Leigh.  567. 

731,  740 
Sanchez  v.  People,  22  K  Y.  147.. 

514,  553 
Sanders  v.  State,  18  Tex.  App.  372.  467 
v.  State,  94  Ind.  147....  127, 

175.  180,  450,  455,  594,   682 
Sanderson  v.  Sanderson,  52  N.  J. 

Eq.  243 334,  349 

Sands  v.  Potter,  59  111.  App.  206.  244 
v.  Sands,  112  111.  225 259 


liv 


CASES    CITED. 


Sanford  v.  San  ford.  62  N.  Y.  553.  401 
Sankevfl.  Lilley,  1  Curt.  Eccl.  Rep. 

391 326 

Sapp  v.   Sapp,  71  Tex.  348 395 

Sarbach  v.  Jones,  20  Kan.  499 

811,  612,  613 

Sasser  v.  Davis,  27  Tex.  656 399 

Sawyers  Sauer,  10  Kan.  466 779 

v.  State,  35  Ind.  70 173, 

188,  189,  514 
Saxon  v.  Wkittaker,  30  Ala.  237.. 

478,  488 
Say  v.  Barwick,  1  Ves.  &  B.  195..  727 
Sayer  v.  Bennett.  1  Cox,  Ch.  107..  379 

Sayresw.  Com.  88  Pa.  291 173, 

175.  456,  466,  467,  506 
Scarth  v.  Security  Mut.  L.  Soc.  75 

Iowa, '346 412 

Schallerc.  State,  14  Mo    502 683 

Schapo  v.  Lehner,  54  Minn.  208  ..  273 
Scheffer  v.  National  L.  Ins.  Co.  25 

Minn.  534 405 

Schlencker  v.  State,  9  Neb.  241  ___ 

558,  683,  686,  698 
Schlidnecht  v.   Rompf,  9  Kv.  L. 

Rep.  181...1 306 

Schmidt  «.  Pfeil,  24  Wis.  452 784 

Schneider  v.  Manning,  121  111.  376 
252,  278,  283,  285,  297, 

331,  359,  550.  586,  587 
Schoellhamer  v.  Rometsch,  26  Or. 

394 247 

Schramm  v.  O'Connor,  98  111.  539- 

720,  723 
Schreiber's  Case,  22  N.  T.  S.  R. 

892.. 735 

Schuenke  v.   Pine  River,  84  Wis. 

669 776 

Schuff  v.  Ransom,  79  Ind.  458 254 

Schultz  v.  Ins.  Co.  40  Ohio  St.  217, 

48  Am.  Rep.  676 

408,  412,  417,  455 
Schwabe  v.  Clift,  2  Car.  &  K.  134, 
On  appeal,  3  Man.  G.  & 
S.  437,  17  L.  J.  C.  P.  2.  406 
Schwilke's  Appeal,  100  Pa.  628...  312 
Scoland  v.  Scoland,  4  Wash.  118..  395 
Scott  v.  Com.  4  Met.  (Ky.)  227,  83 

Am.  Dec.  461. .99,  175,  176 
v.  Paquitt,  17   Lower  Can. 

Rep.  283 742 

v.  Scott,  29  L.  J.  Prob.  N. 

S.  64 749 

v.  State,  12  Tex.  App.  31.. 

683,  687,  688,  706,  717 
v.  Wakem,  3  Fost.  &  F.  328, 

444,  766 
Scribner  v.    Crane,  2  Paige,  147, 

21  Am.  Dec.  81 321 

Scruby  v.  Fordham,  1  Add.  Eccl. 

Rep.  74 373,  374 


Searle  v.  Galbraith,  73  111.  269 247 

Sears®.  Shafer,  1  Barb.  408.-271,  564 
Sechrest  v.  Edwards,  4  Met.  (Ky.) 

163 277,  323,  604 

Secor  v.  Secor,  1  McArth.  630 383 

Seebrock  v.  Fedawa,  30  Neb.  424.  460 
Seeley  v.  Price,  14  Mich.  541.. 731,  732 

Seerley  v.  Sater,  68  Iowa,  376 243 

Sefton  v.  Hopwood,  1  Fost.  &  F. 

578   .289,  333 

Selah  v.  Selah,  23  N.  J.  Eq.  185..  741 

Selby  v.  Jackson,  6  Beav.  192 265 

v.  Jackson,  13  L.  J.  Eq.  N. 

S.  249 273 

Selden  v.  Mvcrs,  61  U.  S.  20  How. 

506,  15  L.  ed.  976 250 

Sellars®.  Sellars,  2  Heisk.  430 

321,  504,  603 
Sellick's  Case.l  City  Hall  Rec.  185.  465 
Sentance  v.  Poole,  3  Car.  &  P.  1_.  247 

Sergeson  v.  Seeley,  2  Atk.  412 

429,  438,  531 
Severin  v.  Zack,  55  Iowa,  28.567,  581 
Sewall  v.  Robbins,  139  Mass.  164. 

318,  603 
Seymer  v.  Lake,  56  Wis.  651.. 770,  771 
Seymour  v.  Delancey,  3  Cow.  445, 

15  Am.  Dec.  270.. .724,  728 
Shackleton  v.  Sebree,  86  111.  616..  730 
Shader    v.  Railway  Pass.   Assur. 
Co.  5  Thomp.  &  C.  643 

761,  763 
Shailer  v.  Bumstead,  99  Mass.  112 

309,  318,  494,  505,  526,  528 
Shanlev's  Appeal,  62  Conn.  325_. 

492.  559,  568,  575 
Shannahan  v.  Com.  8  Bush,  464, 

8  Am.  Rep.  465 99, 

173,  668,  682,  685,  693,  695 
Sharp  v.  Kansas  City  Cable  R.  Co. 

114  Mo.  94.. 557, 

577,596,  597 
v.  Merriman  (Mich.)  2  Det. 

L.  N.  890 597 

Shaul's  Case,  40  How.  Pr.  205 419 

Case,  40  How.  Pr.  204.421,  427 
Shaver  v.  McCarthy,  110  Pa.  339. 
8,  204,  274,  286,  288,  290, 
291,  309,  310,  559,  561, 

574,  584 
Shaw  v.  Dixon,  6  Bush,  644.  .420,  423 
v.  State,  32  Tex.  Crim.  Rep. 

155 184 

v.  Thackray,  23  Eng.  L.  & 
Eq.  18,  1  Smale  &  G. 
537,  17  Jur.  1045. .723,  724 

Shaw's  Will,  2  Redf.  107 282, 

295,  301,  302,  331,  343 
Sheehan  v.  Kearney  (Miss.)  21  So. 
41,  35  L.  R.  A.  102.... 

460,461,498,  561 


CASES    CITED. 


lv 


Sheldon  v.  Dow,  1  Dem.  503 

227,  281,  317,  318 
Shelley's  Case 83 

Shelton  v.  State,  34  Tex.  606 536 

Sherar  v.  State,  30  Tex.  App.  349.  716 
Sherley  v.  Sherley,  81  Ky.  240  ... 

307.  332,  349 
Sherman's  Petition,  17  R.  I.  356. . 

444,447,  590 
Sherwood  v.  Sanderson,    19   Ves. 

Jr.  280. 421 

Shirley  v.  Whitehead,  1  lred.  Eq. 

130 ---  378 

Shirleys  v.  Taylor,  5  B.  Mon.  99.. 

437,557,  561 
Shorb  v.  Brubaker,  94  Ind.  165... 

359,  505 
Shotwell's  Estate,  1  Pa.  Dist.  R. 

257  337 

Shoulter  v.  Allen,  51  Mich.  529...  244 
Shreiner  ».  Shreiner,  178  Pa.  57..  296 
Shropshire  v.  Reno,  5  J.  J.  Marsh. 

91 339 

Shropshire's  Will,  5  J.  J.  Marsh.  15  289 

Shuck  v.  Shuck,  7  Bush.  306 749 

Shufflin  v.  People,  4  Hun,  16.  .787,  790 

Shults  v.  State,  37  Neb.  481 

572,586,  588 

Shultzfl.  State,  13  Tex.  401 198 

Shutt  v.  Shutt,71  Md.  193.743,  750,  751 
Shuttlewirth's  Case,  11  Jur.  41     . 

446,  447 
Siemon  v.  Wilson,  3  Edw.  Ch.  36.  266 
Sill  v.  McKnight,  7  Watts.&  S.  245.  756 
Silverthorn's  Will,  68  Wis.  372... 

372,  461,  462 
Silvus  v.  State,  22  Ohio  St.  90.  .456,  466 

Sim  v.  Russell,  90  Iowa,  656 

330,  331,  516,  525 
Simonton  v.  Bacon,  49  Miss.  582.. 

243,  248,  249,  250 
Sindram  v.  People.  88  N.  Y.  196, 
1  N.  Y.  Crim.  Rep.  448. 
128,  163,  169,  188,  510,  524 
Singer  v.  Isbey,   1  Lane.  L.  Rev. 

193 324,  326,  330 

Singleton  v.  State,  71  Miss.  782...  183 
Sinks  v.  Reese,  19  Ohio  St.  306,  2 

Am.  Rep.  397.. 382 

Sisson  v.  Conger,  1  Thomp.  &  C. 

564 498,501,  796 

Slais  v.  Slais,  9  Mo.  App.  96 

385,  388,  390 
Slinger's  Will,  72  Wis.  22.. ..433,  739 
Sloan  v.  Maxwell,  3  N.  J.  Eq.  563 

288,  459,  475,  562,  599 

Smart  v.  Taylor,  9  Mod.  98 383 

Smee  v.  Smee,  5  Prob.  Div.  84,  28 
Week.  Rep.  703,  44  J. 

P.  220 297,  343, 

461,479,  486 


Smith  v.  Beatlv,  2  lred.  Eq.  456, 

40  Am.  Dec.  435... 251,  258 
v.  Burnham,  1  Aik.  (Vt.)  84.  424 

v.  Com.  1  Duv.  224 23, 

174,  470,  474,  686,  697,  708 
v.  Elliott,    1   Patton  &    H. 

(Va.)307 729 

v.  Fenner,  1  Gall.  170 500 

v.  Hickenbottom,  57  Iowa, 

733 420,  423, 

426,  429,  518,  545,  567,  585 
».  James,  72  Iowa,  515.. 311,  333 
v.  Knights  of  Father  Math- 

ew,  36  Mo.  App.  184  ..  761 
v.  Kramer,  5  Pa.  L.  J.  226..  358 
v.  McClure,  146  Ind.  123...  453 
v.  Norfolk  &  S.  R.  Co.  114 
N.  C.  728,  25  L.  R.  A. 

287.. 768,  774 

v.  Smith,  4  Baxt.  293 460 

v.  Smith,  75  Ga.  477.. 282 

v.  Smith,  157  Mass.  389.564,  584 

v.  Smith,  47  Miss.  211 

382,  383,  389,  392 

v.  Smith,  108  N.  C.  365 273 

v.  Smith,  33  N.  J.  Eq.  458.  395 
v.  Smith,  48  N.  J.  Eq.  566. 

288,  289,  290,  295,  332,  451 

v.  Smith,  60  Wis.  329 

252,  259,  362 

v.  State,  55  Ark.  259 

127,  169,  175,  583 

v.  State,  4Neb.  277 

472,  683,  694,  698,  781 
v.  State,  19  Tex.  App.  95.. 

125,  466,  467,  468 
«.  State,  19  Tex.  App.  444.  135 
v.  State,  22  Tex.  App.  316.. 
125,  132,  162,  178,  450, 

467,  483 
v.  State,  31  Tex.  Crim.  Rep. 

14 467 

v.  Tebbitt,    36  L.  J.  Prob. 
N.  S.  35,  15  L.  T.  N.  S. 

594 478,  479 

v.  Tebbitt,  L.  R.  1  Prob.  & 
Div.  398,  16  L.  T.  N.  S. 

841. 157,  159,  293, 

301,  316,  360,  361 
v.  Thomas,   1  Houst.  Crim. 

Cas.  511 185 

v.  Waite,  4  Barb.  28 373,  374 

v.  Williamson,  8  Utah,  219.  722 
Smith's  Will,  52  Wis.  543,  38  Am. 

Rep.  756 303,  305 

Smurr  v.  State.  88  Ind.  504... 682,  689 
Sne'ling's  Case,  44  N.  Y.  S.  R.  477  350 

Will,  136  N.  Y.  515 286 

Snook  v.  Watts,  11  Beav.  105.185,  439 

Snow  v.  Benton,  28  111.  306 

333,  358,  479,  489,  528 


lvi 


CASES    CITED. 


Snyder  ».  Cunningham,  13  Ky.  L. 

Rep.  24... 595 

v.  Nations,  5  Blackf.  295...  608 
v.  Sherman,  23  Hun,  139. _. 
.  288,  289 

v.  Snyder,  142  111.  60 423 

Soberanesw.Soberanes,  97Cal.  140.  377 
Sombre  v.  Solarolii,  1  Deane  &  S. 

110 242 

v.  Troup,  1  Deane  &  S.  22  __  330 
Somers  v.  Pumphrey,  24  Ind.  231. 

244,  251,  252,  269,  454 
Somes  v.  Skinner,  16  Mass.  348.. .  248 
Soule  Case,  22  Abb.  N.  C.  236... 

276,288,  327 

Case,  1  Connoly,  18 342 

Southcombe  v.  Merriman,   Car.  & 

M.  286 759 

Southern  Tier  Masonic  Rel.  Asso. 
v.  Laudenbach,  5  N.  Y. 
Supp.  901.243,  431,  432,  438 
Southwestern   R.  Co.   v.  Hanker- 
son,  61  Ga.  114 774 

Spann  v.  State,  47  Ga.  549 93,  200 

v.  State,  47  Ga.  553.. ..126,  130 
Sparks    v.    Knights   Templars'  & 
Masons'    L.    Indemnity 
Co.l  Mo.App.Rep.  334.  412 

SDear  v.  Sweeney,  88  Wis.  545 523 

Speck  v.  Philips,  5  Mees.  &  W.279.  728 
Speedling  v.  Worth  Co.  68  Iowa, 

152 445,  1068 

Speer  v.  Sewell,  4  Bush,  239 265 

Spellier's  Estate,  2  Pa.  Dist.  R.513.  354 

Spence  «.  Spence,  4  Watts,  165 603 

v.  State,  15  Lea,  539 711 

Spencer    v.    Moore,  4  Call.  (Va.) 

275,   349,    423 604 

v.  State,  69  Md.  28.134,  171,  490 

Spencer's  Estate,  96  Cal.  448 

304,  344,  359 
Spiers    v.    Higgons,    Cited    in    1 

Madd.  304 723 

Spittle  v.  Walton,  L.  R.  11  Eq.  420 

607,  610,  611 
Sponable  «.  Hanson,  87  Mich.  204 

262,  440 
Spoonemore  v.  Cables,  66  Mo.  579 

310,  502 
Spraguea.  Duel,  11  Paige,  480.251,  261 

v.  Duel,  Clarke,  Ch.  90 258 

Spratt «.  Spratt,  76  Mich.  384.  .291, 

324,  325,  333,  345,  520,  521 
Springfield  v.  State,  96  Ala.  81...  702 
Springstead's  Case,  55  Hun,  603,  28 

N.  Y.  S.  R.  186 333 

Stackhouse  v.  Horton,  15  N.  J.  Eq. 

202 294,  299, 

308,  591,  593,  598 
Stacy  v.  Portland  Pub.  Co.  68  Me. 

279 792 


Stancell  v.  Kenan,  33  Ga.  56.-288,  289 
Standard  Life  &  Acci.  Ins.  Co.  v. 

Jones,  94  Ala.  434 761 

Stannard  v.  Burns,  63  Vt.  244 430 

Stanton    v.  Wetherwax,  16  Barb. 

259... 9,  282,  295,  296 

Staples  v.  Wellington,  58  Me.  453. 

8,  483,  486 
Starnes  v.  Marten,  1   Curt.    Eccl. 

Rep.  294 322 

Starrett  v.  Douglass,  2  Yeates,  46. 

337,  734 
Staser  v.  Hogan,  120  Ind.  207.492, 

520,  529,  530,  562,  567,  577 
State  v.  Abrams,  11  Or.  169.. 561,  718 
v.  Alexander,  30  S.  C.  74, 
14  Am.  St.  Rep.  879. .. 

126,  132,  172,  466 

v.  Archer,  54  N.  H.  465 564 

v.  Arnold,  12  Iowa,  479 

194,  195,  196,  197 
v.  Ashlev,  45  La.  Ann.  1036 

695,  709 
v.  Atherton,  50  Iowa,    189, 

32  Am.  Rep.  134 201 

v.  Avery,  44  N.  H.  392.689,  701 
%.  Baber,  74  Mo.  292,  41  Am. 

Rep.  314 544 

v.  Barber,  92  N.  C.  820....  695 
t  Bartlett,  43  N.  H.  224,  80 

Am.  Dec.  154 162, 

173,  458,  467,  469,  472 

v.  Bell,  29  Iowa,  316 

682,  690,  692 

v.  Bell,  136  Mo.  120 456 

v.  Bowen,  Houst.Crim.Rep. 

(Del.)  91 699,  705,  780 

v.  Brandon,  8  Jones,  L.  463 

133,  171 
v.  Brinyea,  5  Ala.  241  ...93, 

184,  199,  200,  465,  471 
v.  Brooks,  4  Wash.  328.... 

514,  574,  575,  561 
v.  Brown,    1   Houst.    Crim. 

Cas.  539 173,  477 

v.  Brown,  12  Minn   538 456 

v.  Brown  (Del.)  36  Atl.  458. 

607,  611 
v.  Bruce,  48  Iowa,  530,  30 

Am.  Rep.  403 466 

v.  Bryant,  93  Mo.  273 

515,  558,  569 
v.  Buckley,  72  N.  C.  358...  718 
v.  Bullock,  13  Ala.  413.682,  685 
v.  Bundy,  24  S.  C.  439,  58 

Am.  Rep.  262 125. 

134,  172,  466,  683,  685 

v.  Carter,  98  Mo.  176 683 

v.  Castello,  62  Iowa,  404...  796 
v.  Christmas,    6    Jones,    L. 

471 527 


CASES    CITED. 


lvii 


State  v.  Clements,    47    La.    Ann. 

1088 455,  465 

v.  Coleman,  27  La.  Ann.  691 
162,  171,  449,  561,  565, 

682.  684,  709 
v.  Coleman,  20  S.  C.  441.... 

183,  456,  470,  472,473, 

554,  605,  606 

q  Coleman,  31  Ga.  424 541 

v.  Crawford,  11  Kan.   32. .. 

457,  458,  471,  472,   473 

v.  Crisp,  126  Mo.  605 

539.  546,  561,  569 
v.  Cross,  27  Mo.  332 

683,  691,  695 
v.  Cross,  42  W.  Va.  253.686,  781 
v.  Crow,  10  West.  L.  J.  501.  201 
v.  Cunningham,    72    N.    C. 

469  191,  528 

v,  Danbv,    1    Houst.    Crim. 

Rep.  166.... 131, 

165.  455,  456,  466 
v.  Davis,  109  N.  C.  780,  14 

L.  R.  A.  206 467 

v.  Davis,  27  S.  C.  609 487 

v.  Davis,  9  Houst.  Del.)  407 
682,  685,  698,  699,  700, 

710,  711 
v.  Dearing,  65  Mo.  530.. 683,  700 
v.  De   Ranee,  34  La.  Ann. 
186,  44  Am.  Rep.  426.. 

456.  465 
©.  De  Wolf,  8  Conn.  93,  20 

Am.  Dec.  90 608 

».  Dillahunt,  3  Harr.  (Del.) 

551 682.  710,  711 

v.  Donovan,  61  Iowa,  278..  691 
v.  Donovan,  61  Iowa,  369 

682,  687,  688,  706,  707 
v.  Douglass,  28  W.  Va.  297. 

467,  470 
v.  Draper,    1   Houst.    Crim. 

Rep.  291 449,  450 

v.  Dreher  (Mo.)  38  S.  W.  567 

180,  185 
v.  Duestrow,  137  Mo.  44,  38 
S.  W.  564.... 456,  465, 

467,  785 
v.  Edwards,  71  Mo.  321.683,  691 
v.  Enrigbt,90 Iowa,  520.201,  203 

v.  Erb,  74  Mo.  199 125, 

131,  132,  172,  558,  713 
v.  Felter,  25  Iowa,  67..  99, 
125,  127,  149,  174,  175, 

489,  527,  537,  586,  589 

v.  Felter,  32  Iowa,  49 

457,  458,  466,  469 

v.  Feltes,  51  Iowa,  495.792,  795 

v.  Fiske,  63  Conn.  388.. 704,  781 

e   Gardiner,  Wright  (Ohio) 

392 ..125,  470 


State  v.  Garvey,  11  Minn.  154 

561,  683.  688,  706 

v.  Geddis,  42  Iowa,  268 

126.  451,  453,  466,  475,  570 

v.  Gould,  40  Kan.  258 

539,  542 
v.  Graviotte,   22    La.    Ann. 

587 189 

v.  Grear,  28  Minn.  426,  41 

Am.  Rep.  296 673,  791 

v.  Grear,  29  Minn.  221 

469,  685,  704,  777,  780 
v.  Greer,  22  W.  Va.  800....  702 
v.  Gut,  13  Minn.  343... 132, 

134,  169,  465,  467,  529,  697 

v.  Hanley,  34  Minn.  430 467 

v.  Hanson,  25  Or.  391.. 174, 

465,  474,  502,  573,  695,  697 
v.  Harlow.  21  Mo. 446.. 683,  691 
».  Harrigan,  9  Houst.  (Del.) 

369 ...449, 

455,  466,  489,  682,  709,  713 
v.  Harris,  8  Jones,  L.  136.. 

193    197 
v.  Harrison,  36  W.  Va.  729^ 
18  L.  R.  A.  224.... 165, 

166,  172,  194 

v.  Hart,  29  Iowa,  268 

682,691,714,  788 
v.  Hartley,  22  Nev.  342,  28 

L.  R.  A.  33 450 

v.  Hayden,  51  Vt.  296 

539,  540,  558,  570,  600 
v.  Hayes,  16  Mo.  App.  560. 

131,  189,  1066 

v.  Hays,  22  La.  Ann.  39 

162,  490,  498,  509 
v.  Haywood,  1  Phill.  L.  376 

131,  134 
v.  Hill,  46  La.  Ann.  27.777,  780 
v.  Hockett,  70  Iowa,  442... 
125,  126,  191,  466,  469, 

524,  592 
v.  Holloway,  8  Blackf.  45..  608 

v.  Holme,  54  Mo.  153. 178 

v.  Home,  9  Kan.  119 

682,  718 
v.  Hoyt,  46  Conn.   330.   47 

Conn.  518,  36  Am.  Rep. 

89. 455,  466,  513, 

527,  528,  605 

v.  Hundley,  46  Mo.  414 

173,  178,  450,  456,  465, 
466,  467,  468,  469,  595, 

683,  709 
v.  Hurley,  Houst.Crim.Rep. 

(Del.)  28 682,  694, 

710,  780,  784 
v.  Hurst  (Idaho)  39  Pac.  554.  570 

v.  Huting,  21  Mo.  464 

166,  467,  470 


Ivm 


CASES    CITED. 


State  v.  Huxford,  47  Iowa,  16. .. 

765,  792 
v.  Hyde,  29  Conn  564.  .434.  531 
v  John,  8  Ired.  L.  330,  49 

Am.  Dec.  396 502,  683 

v.  Johnson,  40  Conn.  136,41 

Conn.  584 23,  174, 

472,  477,  479,  682,  693, 

694.  695,  698,  701,  702 

v.  Johnson,  91  Mo.  439 

456,  465,  470 

v.  Jones,  64  Iowa,  356 

455,  458,  466,  469,  489,  599 
1).  Jones,  50  N.   H.    369,    9 

Am.  Rep.  242 25, 

125,  126,  135,  136,  169, 

173,  174,  179 
«.  Kalb,  2  Ohio  Leg.  News, 

364 131,174, 

191,  450,  590,  597 
D.  Kelley,  57  N.  H.  549. ... 

489,  490,  608 

v.  Klinger,  43  Mo.  127 

135,  178,  450,  456,  465,  466 

v.  Klinger,  46  Mo.  224 

540,  557,  558,  561,  571,  586 
■c.  Kluseman,  53  Minn.  541 

181,  499 
-».  Kotovsky,  74  Mo.  247... 

131,  172,  173 
•o.  Kotovsky,  11  Mo.   Aop. 

584 1__  163 

v.  Kring,  64  Mo.  591 506 

«.  Lawrence,  57  Me.  574 

134,  166.  169,  450.  456,  466 
v.  Leuth,  5  Ohio  C.  C.  94- . 

456,  1065 
«.  Levelle,  34  S.  C.  120....  172 

».  Lewis,  20Nev.  333 

131,  132,   167,  456,  465, 

466,  468,  490 

v.  Lewis,  136  Mo.  84 456 

v.  Lowe,  93  Mo.  547 

478,  480,  683,  687 
v.  McCants,  1  Speers,  L.  C. 

389.. 683,  685 

v.  McCoy,  34  Mo.    536,   86 

Am.  Dec.  121.450,  456,  466 
v.  McDaniel,  115  N.  C.  807 

697.  699,  701 
v.  McGonigal,  5  Harr.  (Del.) 

510 682,710,  713 

v.  Mcintosh,  39  S.  C.  97... 
131,  132,  456,  466,  469, 

470,  472 
v.  McNinch,  12  S.  C.  89....  797 
v.  Mahn,  25  Kan.  182-473,  805 

v.  Maier,  36  W.  Va.  757 

125,  181,  541.  558,  568 
v.  Marler,  2  Ala.  43,  36  Am. 

Dec.  398.. 465,  471 


State  v.  Martin  (N.  J.)  3  Crim.  L. 

Mag.  44 131,  135, 

450,  456,  466.  467,  49C 
v.  Martin,  4  N.  J.  L.  252,  3 

Crim.  L.  Mag.  44 

683,  684.  686,  694,  695,  710 
v.  Maxwell,  42  Iowa,  208— 

682,  688 

v.  Merrick,  19  Me.  398 470 

V.  Mewherter,    46  Iowa,  88 
125,  168,  169,  174,  175, 

176,  599 

v.  Meyers,  46  Neb.  152 608 

v.  Miller,  111  Mo.  542 171 

v.  Morgan,  40  S.  C.  345.683,  685 
v.  Morphv,  33  Iowa,  270,  11 

Am.  Rep.  122 458,  470 

v.  Mowry,  37  Kan.  369 

131,  132,  172,  682,  687,   698 
v.  Mullen,  14  La.  Ann.  577.  682 

v.  Murphy,  118  Mo.  7 

683,  691,  706,  707 
v.  Murray,  11  Or.  413..  ... 
125,  126,  131,  168,  465, 

561.  563,  572,  578,  788 

v.  Newman,  7  Ala.   69 465 

v.  Nixon,  32  Kan.  205 

165,  172,  471,  472 
e.  Norwood,  115  N.  C.  791.  456 
v.  O'Connor,  11  Nev.  416..  704 
v.  O'Grady,    3     Ohio    Leg. 
News.  137 -...195,  196, 

197,  198,  456,  457,  466 
v.  O'Neil,   51  Kan.   651,  24 

L.  R.  A.  555 .133, 

134,  172,  186,  682,  689, 

698,  710,  713 
v.  O'Reilly,  126  Mo.  597.683,  691 
V.  Pagels,  92 Mo.  300...  125, 
132,  165,  172,   173,  456, 

467,  469,  503,  544 
v.  Patten,  10  La.  Ann.  299, 

63  Am.  Dec.  594 92 

v.  Patterson,  45  Vt.  308,  12 

Am.  Rep.  200 472 

v.  Paulk,  18  S.  C.  514..466,  683 
«.  Payne,  86  N.  C.  B09.    ... 

134,  456,  467,  468 
v.  Peacock,  50  N.  J.  L.  34.. 

196,  510 
v.  Pennyman,  68  Iowa.  216.  561 
9.  Pike,  49  N.  H.  399,  6  Am. 

Rep.  533... 24,  89, 

160,  162,  167,  173,  178, 

564,  715,  792 

v.  Pitts,  58  Mo.  556 683 

v.  Porter,  34 Iowa,  131..503,  583 

v.  Potts,  100  N.  C.  457 

134,   170,  171,  465,  467, 
488,  537,  540,  558,  569, 

683,  685.  710,  711,  780 


CASES    CITED. 


lix 


State  v.  Pratt,     1    Houst.     Crim. 

Rep.  249 131,  162, 

165,  455,  466 
v.  Pratt,  34  Vt.  323  ....764,  765 
v.  Pritchett,  106  N.  C.  667, 

200,  490,  513 
v.  Ramsey,  82  Mo.  133. .683,  691 

v.  Reddick,  7  Kan.  143 

135,  472,  477,  479,  480, 

547,  555,  779 
•o.  Redemeier,  71  Mo.  173,  36 

Am.  Rep.  462 129, 

131,  133.  450,  456,  467 
v.  Redemeier,  8  Mo.  App.  1.  134 
v.  Reidell,   9  Houst.    (Del.) 

470 131,  167, 

173.  449,  455,  470,  471,  593 
v.  Richards,  39  Conn.  591 .. 

128    131 
v.  Riley,  100  Mo.  493...."..' 

189,  683,  686,  710,  71b,  714 
v.  Rippy,  104  K  C.  752.712,  805 
v.  Robinson,  20  W.  Va.  713, 

43  Am.  Rep.  799 

465,  467,  683,  685,  698, 

701,  708.  709,  710 
v.  Ryan,   1   Jarman,  Wills, 

122,  note 558,  583 

v.  Schaefer,  116  Mo.  96 

183,  456,  467,  478.  479,  480 

v.  Schingea,  20  Wis.  75 691 

v.  Scoit,  4J  La.  Ann.  253,  36 

L.  R.  A.  721 180, 

450,  456,  467.  469 
«.  Scott,  1  Hawks  (N.  C.)  24 

502,  616 

D.  Scott,  41  Minn.  365 

171,  543,  554 
v.  Sewell,  3  Jones,  L.  245.. 

488.  780 
1).  Shippey,  10  Minn.  223,  88 

Am.  Dec.  70..  127,  134,  188 

v.  Shoultz,  25  Mo.  128 127 

v.  Simms,  68  Mo.  305 

180,  191,  527 

v.  Simms,  71  Mo.  538 

169,  177,  854 

v.  Smith,  49  Conn.  376 

693,  695,  702,  794 
w.Smith, 53 Mo.267. 456,  467,  468 
v.  Sneed,  88  Mo.  138... 683,  691 
v.  Sopher,  70  Iowa,  494.700,  708 
v.  Spencer,  21  N.  J.  L.  196 
131,  150,  205,  465,  467, 

478,  479,  503 
«.  Stark,  1   Strobh.    L.  479 

178,  183,  467,  495.  683 
v.  Starling,  6  Jones,  L.  366 

450,  456,  467,  469 
v.  Stickley,  41  Iowa,  232... 

126,  127,  175,  558,  571 


State  v.  Strauder,  11  W.  Va.  745, 

27  Am.  Rep    606 

467,  469,  470 

v.  Swift,  49  Conn.  376 126 

v.  Swift,  57  Conn.  496 

126,  133,  520,  795 
».  Tarr,  28  Io=?a,  397...201,  202 

v.  Tatro,  50 Vt.  483 

499,  683,  697 
v.  Thomas,     Houst.     Crim. 
Rep.  (Del.)  511. ...131, 

450,  455,  470,  682,  780 
v.  Thompson,  12Nev.  140.. 

683,  686 
v.  Thompson,  28  Or.  296...  432 
v.  Thompson,      1      Wright 

(Ohio)  617 470,683, 

686,  687 
v.  Till,   Houst.  Crim.    Rep. 

(Del.)  233 682,  686 

•o.  Tilly,  3  Ired.  L.  424 501 

v.  Toohy,  2  Rice,  Dig.  (S.C.) 

105,  683 

v.  Towe,  93  Mo.  547 780 

v.  Townsend,  66  Iowa,  741 

596,   1069 
i).  Trivas,  32  La.  Ann.  1086, 

36  Am.  Rep.  293... 688,  689 
v.  Trout,  74  Iowa,  545.466,  469 
v.  Turlington,  102  Mo.  642.  131 
v.  Turner,  Wright  (Ohio)  26 

532,  683 
v.  Underwood,  6  Ired.  L.  96  796 
v.  Vann,  82  N.  C.  631.. 467,  501 
v.  Vann,  84  N.  C.  722... 93,  200 
v.  Waterman,  1  Nev.  543. ..  472 

v.  Welch,  21  Minn.  22 693 

v.  Wells,  54  Kan.  161 686 

v.  Welsor,  117  Mo.  570...:. 

503,  510,  539 
v.  West,  Houst.  Crim.  Rep. 
(Del.)  371 .134,  173,  174. 

465,  510,  605 

v.  White,  14  Kan.  538 

682,  688,  689,  690,  695,  706 
v.  White,  10  Wash.  611....  807 
v.  Williamson,  106  Mo.  162 

171,  466,  468,  574 

v.  Wilner,  40  Wis.  304 

8,  478,  484 
v.  Wilson,  104  N.  C.  868... 

683,  695 
v.  Winsor,    5    Harr.    (Del.) 

512 169,  173, 

174,  527,  530,  539 

v.  Winter,  72  Iowa,  627 558 

v.  Wright,  134  Mo.  404,  35 
S.  W.  1145. ..132,  180, 

449.  465,  467,  542 
v.  Yarborough,39  Kan.  581.  171 
v.  Zorn,  22  Or.  591.131,  134,  698 


lx 


CASES    CITED. 


State  Bank  0.  McCoy,  69  Pa.  204, 

8  Am.  Rep.  246 722 

Stauffera.  Young,  39  Pa.  455 532 

Stebbins  v.  Hart,  4Dem.  501.. 316,  346 
Stedham  0.  Stedham,  32  Ala.  525. 

274,   805 
Steed  v.  Colley,  1  Keen,  620.. 316,  475 

Stephen  0.  State,  11  Ga.  225 201 

Stephenson    v.     Stephenson,      62 

Iowa,  163 459,  602 

Sternberg  v.  Schoolcraft,  2  Barb. 

153 401 

Stevens  v.   State  (1870)  9  Am.  L. 

Reg.  N.  S.  530 149 

e.  State,  31Ind.  485,  99  Am. 
Dec.  634.... 25,  99,  165, 

168,  173,  174,  472,  473 

«.  Stevens,  127  Ind.  560 

430,  440,  476 
0.  Vancleve,  Den,  ex.  dem. 

4  Wash.  C.  C.  262 

284,  289,  292,  309,  320, 
323,  462,  479,  481,  492, 

493,  501 
Stevenson  v.  Stevenson,  33  Pa.  469 

288,  290 
Steward  0.  Lispenard,  26  Wend. 

255..: 279,  280, 

284,  337,  433 

Stewart  0.  Curtis,  85  Mich.  496...  265 

0.  Elliott,  2  Mackey,  307...  283 

0.  Flint,  59  Vt.  144.. ..255,  483 

0.  Kirkbride.Com.  2Brewst. 

419 192,444,  534 

0.  Lispenard,  26  Wend.  256.  881 

0.  Redditt,  3  Md.  67 

484,  499,  557,  573,  574 

0.  Spedden,  5  Md.  423 

558,  582,  584 

0.  State,  58  Ga.  577 528 

Stewart's  Will,  39  N.  Y.  S.  R.  801.  341 
Stigers  0.  Brent,  50  Md.  214,  33 

Am.  Rep.  317 401 

Stirling®.  Stirling,  64  Md.  138. _.  603 
Stokes  0.  Miller,  10  W.  N.  C.  241 

314,  368,  561,  574,  584 
0.  ShipDen,  13  Bush,  180... 

328,  497,  522 

Stone  0.  Damon,  12  Mass.  487 432 

0.  Wilbern,  83  111.  105.. 251,  252 
Storer's  Case,  28  Minn.  9.332,  540,  551 
Storey's  Will.  20  111.  App.  183... . 

277,  284,  29y,  305,  323,  361 

Storick's  Case,  64  Mich.  685 

420,  424,  425 
StormOut  0.  Waterloo  Life  &  Cas. 
Assur.  Co.  1  Fost.  &  F. 

22 406,  418,  455 

Storrs0.  Scougale,  48  Mich.  587..  248 
Stoutenburgh  v.  Hopkins,  43  N.  J. 

Eq.  577... 276,  288,  289,  353 


Stover  0.  Com.  92  Va.  780.. 200 

Strand  0.  Chicago  &  W.  M.  R.  Co. 

67  Mich.  380 769 

Strang  0.  People,  24  Mich.  1 797 

Stratford   v.   Stratford,   92  N.    C. 

297 393,  396,  397 

Stratton  0.  Morris,  89  Tenn.  497, 

12  L.  R.  A.  70 275 

Streeter  0.  Western  Union  Mut.  L. 
&  A.  Soc.  65  Mich.  199 

411,  412,  416 
Stuart  0.  Machias  Port,  48  Me.  477 

770,  771,  775 

0.  State,  1  Baxt.  178 

130,  131,  134,  472,  710,  711 
Stubbs  0.  Houston.  33  Ala.  555... 
280,  285,  286,  459,  495, 

511,  521,  562,  570,  576 

Stuckey  0.  Bellah,  41  Ala.  700 570 

0.  Mathes,  24  Hun,  461 383 

0.  State,  91  Ind.  141 570 

Studstill  0.  State,  7  Ga.  2 126,  127 

Stuyvesant  B.Wilcox,  92  Mich.  228  326 
Sullivan  0.  Flynn,  9  Mackey,  396.  437 
Summers  0.  Copeland,  125  Ind.  466 

495,  496 
Suppinger  0.  Covenant  Mut.  Ben. 

Asso.  20  111.  App.  595..  409 
Supreme  Commandery  K.  of  G.  R. 
0.   Ainsworth,   71   Ala. 
436,  46  Am.  Rep.  332. . 

410,  415 

Surber  0.  State,  99  Ind.  71 682 

Sutherland  0.  Hankins,  56  Ind.  343 

558,  573,  574 
0.  Standard  L.  &  Acci.  Ins. 

Co.  87  Iowa,  505 762 

I,  Sutton  0.  Morgan,   30  N.  J.   Eq. 

629  598 

0.  Reagan,   Doe,  5   Blackf. 

217,  33  Am.  Dec.  466..  561 
0.  Sadler,  3  C.  B.  N.  S.  87, 
3  Jur.  N.  S.  1150..452, 

461,  462,  476,  499,  501 
0.  Sutton,  5  Harr.  (Del.)  459 

286,  287,  308,  520,  521,  525 

Swails0.  White,  149  Pa.  261 

492,  559,  569 

Swan  0.  State,  4  Humph.  136 

683,  688,  698 
Swayze  0.  Swayze,  37  N.  J.  Eq. 

180 453 

Swenarton   v.    Hancock,    9    Abb, 

N.  C.  326 288,  321 

Swick  0.  Home  Ins.    Co.  2  Dill. 

160 760,  762 

Symes  0.  Green,  5  Jur.  N.  S.  742 
(1859)    1    Swab.    &   T. 

401 227,  327,  330, 

362,  372,  463,  479 
Symm  0.  Fraser,  3  Fost.  &  F.  859.  766- 


CASES    CITED. 


lxi 


T. 


Tacke's  Case,  17  N.  Y.  S.  R.  805..  735 

Taffe  v.  State,  23  Ark.  34 196 

Taft®.  Hosmer,  14  Mich.  309 463 

Talbot  v.  Chamberlain,  149  Mass. 

57,  3L.  R.  A.  254 397 

Tallman's  Will,  1  Pa.  Adv.  R.  530.  314 

Tally  v.  Smith,  1  Coldw.  290 

247,248.  249 
Tatham  v.  Wright,  2  Russ.  &  M.  1  559 

Tawney  v.  Long,  76  Pa.  106 

277,288,  296 
Taylor  v.  Atwood,  47  Conn.  498..  248 
v.  Com.  109  Pa.  262.... 125, 

175,  176,  558,  600 

v.  Creswell,  45  Md.  422 

459,  462,  481,  485 
v.  Kelly,  31  Ala.  59,  68  Am. 

Dec.  150 277,  288,  350 

v.  Patrick,  1  Bibb.  168.  .245.  720 
v.  Pureed,  60  Ark.  606.720,  722 

v.  Trich,  165  Pa.  586 

292,  295,  296,  304,  305, 

581,  584 
v.  United  States,  7  App.  D. 

C.  27.. 569,  572, 

579, 1058,  1065 
v.  United  States,  23  Wash. 

L.  Rep.  433 188 

Taylor's  Case,  92  Cal.  564.... 584,  587 

Estate,  16  Phila.  274... 312,  452 

Will,  1  Edm.  Sel.  Cas.  375..  433 

Telgarden  v.  Lewis,  145  Ind.  98..  459 

Temple  v.  Temple,  1   Hen.  &  M. 

476 324,  327,  733, 

736,  737,  777,  778,  807 
Tenbrook  v.  Lee,  5  Clark  (Pa.)  37.. 

276    ^88 

Terrill  <o.  State,  74  Wis.  278 .'  713 

Territory  v.  Davis  (Ariz.)  6  Lawson 
Crim.  Def.  630,  10  Pac. 
359.-699,  711,  712,  715,  795 
v.  Franklin,  2  N.  M.  307... 

683,  686,  696,  797 

v.  Hart,  7  Mont.  489 558 

v.  Manton,  8  Mont.  95.. 683,  718 
v.  Padilla  (N.   M.)  46  Pac. 

346.. 581,613,  614 

v.  Roberts,  9  Mont.  12.. 558,  568 
Terry  v.  Buffington,  11  Ga.  337,  56 

Am.  Dec.  423 292, 

316,  317,  318,  486,  492,  493 
v.  Life  Ins.  Co.  1  Dill.  403.  408 
Texas  Mut.  L.  Ins.  Co.  v.  Davidge, 

51  Tex.  244 786 

Thayer  v.  Boyle,  30  Me.  475 796 

v.  Thayer,  9  R.  I.  377 

388,  396,  397 

Thomas  v.  Carter,  170  Pa.  272 

293,  296,  301,  335 


Thomas  v.  Hatch,  3  Sumn.  170...  531 
v.  State,  71  Miss.  345...  188,  853 
v.  State,  40  Tex.  60.126, 131,  558 

v.  Stump,  62  Mo.  275 

345,  354,  521 
Thomas's  Estate,  20  W.  N.  C.  336.  374 
Thomasson  v.  Kirchevel,  10  H  umph. 

322 430 

Thompson  v.  Bowie,  71   U.   S.  4 

Wall.463, 18  L.  ed.  423.  783 
v.  Hawks,  14  Fed.  Rep.  902.  305 

v.  Ish.  99  Mo.  160 277, 

288,  318.  496,  501,  502,  528 
v.  Kyner,  65  Pa.  368. .  .276. 
285,  286,  290,  292,  317, 
330,  332,  353,  362,  451, 

459,  485,  504.  734 
v.  Quinby,  2  Bradf.  449.303,  305 
v.  State,  33  Tex.  Crim.  Rep. 

472 203 

v.  Thompson,  21  Barb.  107. 

298,  303 
v.  Thompson,    13  Ohio   St. 

356 -  505 

v.  Updegraff,  3  W.  Va.  629 

499,  500 

Thorn  v.  Thorn,  51  Mich.  157 259 

Thornton  v.  Thornton,  39  Vt.  122 

322,  323.  351,  496,  553,  604 
Thorp  v.  Amos,  1  Sandf.  Ch.  26..  378 
v.  Brookfield,  36  Conn.  320 

770,771,  775 
Thorpe  v.  Hanscom,  64  Minn.  201. 

431,  432 
Thurman  v.  State.  32  Neb.  224. ..  169 
Tidwell  v.  State,  70  Ala.  33  ..682,  694 
Tiffanv  v.  Tiffany,  84  Iowa,  122.. 

391,  394 
Tillman  v.  Hatcher,  1  Rice,  L.  271 

309,  311 
Tilton  v.  Tilton,  16  Kv.L.Rep.538.  748 
Tingley  v.  Cowgill,  4*8  Mo.  291... 

460,  463,  502,  540 
Titcomb  v.  Vantyle,  84  111.  371 ... 

252,  253,  449,  451,  453,  475 
Titlon  v.  Titlon,    54  Pa.  216,   93 

Am.  Dec.  691 

430,  431,  435,  460,  496, 

500,  501,  505,  559,  600,  601 
Tobin  v.  Jenkins,  29  Ark.  151 

307,  330,  332,  492,  495, 

496,  514 
Todd  v.  Fenton,  66  Ind.  25.. .498,  500 
Toledo,  P.  &  W.  R.  Co.  v.  Riley, 

47  111.  514 773 

Tollmar  v.  Germania  L.  Ins.  Co. 

Bliss,  Life  Ins.  §242..  405 
Tomkins  v.  Tomkins,  1  Bail.  L.  92, 

19  Am.  Dec.  656 

276,  284,  325,  326,  327, 

341,  364,  594 


lxii 


CASES    CITED. 


Tompkins  v.  Oswego,  40  N.  Y.  S. 

R.  4 775 

Toome's  Estate,  54  Cal.  509, 35  Am. 

Rep.  83 492,  548 

Topeka  Water  Supply  Co.  v.  Root, 

56  Kan.  187 432 

Topham  v.  Chelsea,  60  Vt.  219.397,  398 
Towart  v.  Sellars,    5  Dow.  P.  C. 

231 256,  264,  602 

Townsend  v.  Bogart,  5  Redf.  93.. 

280,  281,  288,  289,  343,  436 

v.  Pepperell,  99  Mass.  40 

397,528,  553 
Townshend  v.  Townshend,  7  Gill, 
10... 296,  310,  479,  483, 
486,  557,  561,  570,  583,  584 
v.  Townshend,  9  Gill,  506..  506 
Tozer  v.  Saturlee,  3  Grant.  Cas.  162 

242,  431,  435,  766,  767 
Tracey  v.  Sacket,  1  Ohio  St.  54,  59 

Am.  Dec.  610 248,  250 

Tracy's  Case,  1  Paige,  580.... 762,  765 
Will,  11  N.  Y.  S.  R.  103.. 
299,  334,  359,  733,  737,  738 
Travelers'  Ins.  Co.  v.  McConkey, 
127  U.  S.  661,  32  L.  ed. 

308 411 

v.  Melick,  65  Fed.  Rep.  178, 

27  L.  R.  A.  629 413 

Trezevant  v.  Rains,  85  Tex.  329.. 

276.  289,  290,  310,  331 

Tribbe  ».  Tribbe,  13  Jur.  793 363 

Trice,  Ex  parte,  53  Ala.  546 

194,  195.  197,  451 
Trigg  v.  State,  49  Tex.  645.. .755,  756 
Triinbo  v.  Trimbo,  47  Minn.  389. 

244,  483 

Trish  v.  Newell,  62  111.  196 

281,  288,  291,  463,  485 
Tritchler  v.  Keystone  Mut.  Ben. 
Asso.    5    Northampton 

Co.  Rep.  301 411 

True  v.  Raney,  21  N.  H.  52  ..384,  385 
Trumbull  v.  Gibbons,  Den  ex  dem. 
22  N.  J.  L.  117,  51  Am. 

Dec.  253 228,  282, 

331,  333,  451,  459 
Tucker  v.  Shaw,  158  111.  326. .607,  611 
v.  United  States,  151  U.  S. 

164,  38  L.  ed.  112 694 

v.  Whitehead,  59  Miss.  594.  460 
Tudor  v.  Tudor,  17  B.  Mon.  383. .  518 
Tunison  v.  Tunison,  4  Bradf.  138. 

328,  501 
Turing's  Case,  1  Ves.  &  B.  140..  383 
Turner  v.  Cheesman,  15  N.  J.  Eq. 

243 277,  281,  451. 

459,  478,  481,  492,  604,  734 
».Cook,36Ind.  129.499.556,  578 
v.  Hand,  3  Wall.  Jr.  88.— 

268,  304,  341 


Turner  v.  Houpt,  53  N.  J.  L.  526.  243 
®.  Kansas  City,  St.  J.  <fc  C. 
B.  R.  Co.  23  Mo.  App. 
12 569 

t>.  Meyers,  1  Hagg.  Consist. 

Rep.  414 382,  383,  389 

v.  Rusk,  53  Md.  65 296, 

305,  310,  481,  482,  484,  520 

v.  Turner,  1  Litt.  102 452 

v.  Union  National  Bank,  10 

Utah,  77 250 

v.  Utah  Title  Ins.  &  T.  Co. 

10  Utah,    61 250 

Tyra  v.  Com.  2  Met.  (Ky.)  1..682,  703 

Tyson  v.  Tyson,  37  Md.  567 

283,  459,  462 


U. 


Ulmer's  Appeal  (Pa.)  11  Cent.  403 

314,  322 
Underbill's   Case,  21   Ohio  L.    J. 

279 807 

Union  C.  L.  Ins.  Co.  v.  Hollowell, 

14Ind.  App.  611 412 

Union  Mut.  L.  Ins.  Co.  v.  Reif,  36 
Ohio   St.  596,  38  Am. 

Rep.  613 758,  759 

United  Brethren  Mut.  Aid.  Soc.  v. 
O'Hara,  120  Pa.  256... 

759,  786,  793 
United  States  v.  Bowen,  4  Cranch, 

C.  C.  604.. 684,  704 

v.  Clarke,  2  Cranch,  C.   C. 

158 709,  713 

v.  Claypool,   14  Fed.    Rep. 

127 666,  684,  687 

v.  Cornell,  2  Mason,  91 

126,  127,  684,  687 
v.  Drew.  5  Mason,  28,  W.  & 
S.  Med.  Jur.  203 

665,  668,  669,  709 
v.  Faulkner,  35  Fed.   Rep. 

730 126,  128,  131, 

172,  472,  473,  552 
v.  Forbes,  Crabbs,  558  (1845) 

666,  684,  687,  710 
v.  Guiteau,  10  Fed.  Rep.  161.  450 
v.  Guiteau,  1  Mackey,  498, 

47  Am.  Rep.  247 

176,  512,  550,  551,  567,  583 
v.  Haskell,  4  Wash.   C.  C. 

402 616 

«.  Hewson,  7  Law  Rep.  361.  173 
v.  Holmes,  1  Cliff.  98.. 166, 

172,  498,  509,  512,  558,  600 
v.  King,  34  Fed.  Rep.  360_. 

167,  179,  694,  702 
v.  Lancaster,  7  Biss.  440 ... 

199,  456,  457,  472 


CASES    CITED. 


lxiii 


United  States  v.  Lawrence  (1835)  4 

Cranch,  C.  C.  514.117,  456 
v.  Lee,  4  Mackey,   489,  54 

Am.  Rep.  293 163,  183 

v.  McGlue,  1  Curt.  C.  C.  1, 
2  Lawson  Crim.  Def. 
54. ...131, 450,467,  469, 
541,  665,  670,  684,  710, 

713,  776 
v.  Meagher,  37  Fed.    Rep. 

875 -.688,  694,  695 

v.  RidL'eway,  31  Fed.  Rep. 

144 ..165,  169,  187 

v.  Roudeubush,  Baldw.  514 

684,  686 
v.  Sharp,  1  Pet.  C.  C.  118..  507 
v.  Shults,  6  McLean,  122- . 

130,  185,  186 
v.  Young,  25  Fed.  Rep.  710 

128,  134,  172,  187 
Unity  v.  Belgrade,  76  Me.  419... .  382 
Upstone  v.  People,  109  111.  169... 
474,  558,  682,  685,  686, 

689,  709,  715,  787 


V. 


"Van  Alst  v.  Hunter,  5  Johns.  Ch. 

148_ .228,  275.  277,  349,  907 
Vanauken's  Case,  10  N.  J.  Eq.  186  427 
Van  Auken's  Case,  10  N.  J.  Eq. 

192 422 

Vance  v.  Com.  2  Va.  Cas.  132....  490 

v.  Upson,  66  Tex.  476 

284,  295,  296,  309,  327, 
328,  340,  461,  476,  478, 
481,  482,  495,  506,  516, 

522,  540,  543,  584,  588 

v.  Vance,  74  I  nd.  370 530 

Van  Deusenw.  Newcomer,  40  Mich. 

90.  .-443,  444,  509,  543,  552 
v.  Rowley,  8  N.  Y.  358....  375 

v.  Sweet,  51  N.  Y.  378 

253,  435,  438 
Vane  v.  Vane,  L.  R.  2  Ch.  Div. 

124 419 

Van  Guysling  v.  Van   Kuren,  35 

N.  Y.  70 291 

Van  Horn  v.  Keenan,  28  111.  445.. 

251,  732 
Van  Huss  v.  Rainbolt,  2  Coldw. 

139 561,  601 

Vann  v.  State,  83  Ga.  44 682,  690 

Van  Pelt  «.  Van  Pelt,  30  Barb.  134 

331,  333,  454 
Vanvalkenburg  c.Vanvalkenburg, 

90Ind.  434 594 

Van  Valkenburgh  ».  American 
Popular  L.  Ins.  Co.  9 
Hun,  583 758,  778 


Van  Wyck  v.  Brasher,  81  N.  Y. 

260 729 

Van  Zandt  v.  Mutual  Ben.  L.  Ins. 

Co.    55  N.  Y.    169,    14 

Am.  Rep.  215 407, 

409,  411,  554 

Veeder's  Case,  6  Dem.  92 296,  360 

Violet's  Will,  1  Bibb,  617.324,  733,  735 
Von  Zastrow   Case,    1   Casper  & 

Liman,  Med.  Juris. 509.    44 


W. 

Wachholz  v.  Wachholz,  75  Wis. 

377 75$ 

Waddell  v.W added,  2  Swab.  &  T. 

584 75$ 

Waddington  v.  Busby,  45    N.  J. 

Eq.  173... -.276,  288 

Wade  v.  Colvert,  2  Mill.  Const.  27, 

12  Am.  Dec.  652.-719,  730 
v.  Holbrook,  2  Redf.  378. - 

276,  288,  289 
v.  State,  Nix,  37  Ind.  180.. 

478,  480 
Wadsworth  v.  Sharpsteen,  8  N.  Y. 
388,  59  Am.  Dec.  499. . 

431,  432,  767 
v.  Sherman,  14  Barb.  169. . 

431,  766,  767 
Wagener  v.  Harriott,  20  Abb.  N. 

C.  283 273 

Wager  v.  Reid,  3  Thomp.  &  C.332.  731 
Wagner  v.  People,  2  Keves,  684.. 

129,  472 
Walcott  v.  Allyn,  Milw.  Eccl.  Rep. 

65. --  303 

Walker  v.  Clav,  21  Ala.  797.. 401,  491 

v.  Jones",  23  Ala.  448 506. 

v.  People,  1  N.  Y.  Crim. 
Rep.  7,  22,  26  Hun,  67, 
Affirmed  in  88  N.  Y.  81. 
23,  131,  134,  172,  450, 

456,  472 
v.  People,  88  N.  Y.  86,  Af- 
firming 1  N.  Y.  Crim. 
Rep.  7. -.125,  129,  171,  474 

v.  State,  102  Ind.  502 

9,  166,  173,  528,  530 

v.  State,  46  Neb.  25 195 

v.  State,  85  Ala.  7 682,  704 

v.  State,  91  Ala.  76 696 

v.  State,  97  Ala.  85.... 607,  612 

v.  Walker,  14  Ga.  242 559 

v.  Walker,  34  Ala.  469 587 

Wall  y.  Hill,  1  B.  Mon.  290,  36 

Am.  Dec.  578 261, 

430,  431,  434,  435,  438,  440 
Wallace  v.  Manhattan  Co.  2  Hall 

(N.  Y.)495 381 


lxiv 


CASES    CITED 


Wallis  v.  Hodgeson,  2  Atk.  56 461 

v.  Luhring,  134  Ind.  447... 

449,  477,  503 
Walsh  v.  Consumnes  Tribe,   No. 

14,  I.  O.  R.  M.  108  Cal. 

496 414 

v.  People,  88  N.  Y.  458-527,  1066 
Walter  v.  People,  32  N.  Y.  147— 

450,  456,  473 
Walther's  Will,  7N.  Y.  Supp.  417.  334 
Walton  v.  Northington,  5  Sneed, 

282... 258,  271 

v.  Walton,  34  Kan.  195 

744,  745,  747,  748,  764 
Ward  v.  Chicago,  St.  P.  M.  &  O. 

R.  Co.  85  Wis.  601....  770 
v.  Dulaney,  23  Miss.  410... 

382,  384,  388 
v.  State,  19  Tex.  Aop.  664.  . 

482,  683, "709,  712,  717 

Ware  v.  Ware,  8  Me.  42 309, 

505,  508,  529,  562,  565 
Waring  v.  Waring,  12  Jur.  947,  6 
Moore,  P.  C.  341  ....9, 

157,  233,  293,  295,  486 
Warlick  v.  Plonk,  103  N.  C.  81... 

398,  399 
Warner  v.  New  York  C.  R.  Co.  44 

N.  Y.  465 786 

v.  State,  114  Ind.  137. 

125,  166,  561 
v.  State,  56  N.  J.  L.  686....  697 
Warnock  v.  Campbell,  25  N.  J.  Eq. 

485 ....731,  740 

Warren  v.  Com.  37  Pa.  45 503,  782 

v.  State,  9  Tex.  App.  619,  35 

Am.  Rep.  745 131,  489 

Wartemberg  v.  Spiegel,  31  Mich. 

402 259 

Wartena  v.  State,  105  Ind.  445...  126 
Waskam  v.  Waskam,  31  Miss.  154 _  752 
Waterman  v.  Whitney,  11  N.  Y. 
157,  62  Am.  Dec.  71— 

498,  500,  501,  502 

Waters  v.  Barral,  2  Bush.  598 270 

v.  Connecticut  Mut.  L.  Ins. 
Co.  2 Fed.  Rep.  892 _. 7, 

408,  409 

®.  Cullen,  2Bradf.  354 737 

v.  Howlett,  3   Hagg.    Eccl. 

Rep.  790 952 

v.  Taylor,  2  Ves.  &  B.  299..  379 

v.  Waters,  35  Md.  531 

464,  508,  519,  529,  557, 

561,  573,  582,  584 
Watson  v.  Anderson,  11  Ala.  43.. 

263,  511,  512,  578 
v.  Anderson,  13  Ala.  202...  593 
n.  Donnelly,  28  Barb.  653.  . 

288,  331,  353 
*.  Smith,  7  Or.  448 258 


Watson  v.  Watson,  2B.  Mon.  374.  325 
Watson's  Case,  34  N.  Y.  S.  R.  906.  733 
Interdiction,    31    La.  Ann. 

757 422,428,  590 

Watt  v.  Bookover,  35  W.  Va.  323.  401 
Watt's    Case,  1   Curt.  Eccl.  Rep. 

594.. 440 

Watts  v.  Bullock,  1  Litt.  (Ky.)252 

277,  350 
Wax's  Estate,  106  Cal.  343.509,  531,  573 
Waymire  v.  Jetmore,  22  Ohio  St. 

271 382 

Webb  v.  State,  9  Tex.  App.  490.. 

467,  470,  540,  542,  544,  545 
v.  State,  5  Tex.  App.  596... 
135,  450,  467,  478,  479, 

483,  558 

Webber  v.  Com.  119  Pa.  223 490 

v.  Sullivan,  58  Iowa,  260... 

274,  286,  290 
Weed  v.  Mutual  Ben.  L.  Ins.  Co. 

3  J.  &S.  386 415 

v.  Mutual  Ben.  L.  Ins.  Co. 

70  N.  Y.  561 407,  416 

Weeks  v.  New  Orleans  &  C.  R.  Co. 

32  La.  Ann.  615.. 769 

Weems  v.  Weems,  19  Md.  334 

292,  562,  567,  569 

Weil's  Case,  16  N.  Y.  S.  R.  1 336 

Weir  v.  Fitzgerald,  2  Bradf.  42... 

365,  454 
Weir's  Will,  9  Dana,  434.304,324, 

326,  328,  329,  336,  371,  508 
Weisman's  Estate,  45  Phila.  Leg. 

Int.  274 733 

Welch  v.  Ware,  32  Mich.  77 127 

Weldw.  Sweeney,  85  III.  50. .321,  604 
Wellman's  Case,  3  Kan.  Ap,».  100.  444 
Welty  v.  Indianapolis  &  V  R.  Co. 

105  Ind.  55 768 

Wendell's  Case,  1  Johns.  Ch.  600. 

419,  429 

Wenz  v.  State,  1  Tex.  App.  36 

688,  689,  691 
Werstler  v.  Custer,  46  Pa.  502.460,  451 
Wertz  v.  Wertz,  43  Iowa,  534.391,  394 
Wesley  v.  State,  37  Miss.   327,  75 

Am.  Dec.  62 169 

Westcott  v.  Sheppard,  51  N.  J.  Eq. 

315 277,  288,  289,  290 

Westmore  v.  Sheffield,  56  Vt.  239 

397  558 
Westmoreland  v.  State,  45  Ga.  225.  470 
Weston  v.  Higgins,  40  Me.  102... 

478.  482,  484 
Wetherbee  v.  Wetherbee,  38  Vt. 

454   540,  553 

Wetmore's  Case,  6  Wash.  271 764 

Wetter  v.  Habersham,  60  Ga.  194 

294,  463 
Weynine  v.  Wolfe,  52  Iowa,  533..  772 


CASES    CITED. 


lxv 


Wheeler  v.  Alderson,  3Ha_._r.  Eccl. 
Rep.  574.-241,242,282, 
317,  318,  G84,  734,  736.  779 
v.  State,  34  Ohio  St.  394,  32 

Am.  Rep.  372.273,  531,  532 
v.  Wheeler,  53  Iowa,  511,  36 

Am.  Rep.  240.. 753 

Wheeler's  Case,  5  Misc.  279 

288,  289,  452 
Will,  56  N.  Y.  S.  R.  709....  349 
Wheelock  v.  Godfrey,  100  Cal.  578 

537,  547,  555,  573 
Whelpleyw.  Loder,  1  Dem.  368.. 

365,  593 
White  v.  Bailey,  10  Mich.  155.... 

538,587,  561 
v.  British   Empire  Mut.    L. 
Assur.  Co.  19  L.  T.  N. 
S.  306,  17  Week.   Rep. 
26,  L.  R.  7  Eq.  Cas.  394  406 
0.  Cox,  3  Hayw.  (Term.;  82.  725 
v.  Davis,  42  N.  Y.  S.  R.  901 

720,  781 
v.  Driver,     Phillim.      Eccl. 

Rep.  84 341,  479,  481 

v.  Farley,  81  Ala.  563 

276,  341,  453 
v.  Graves,  107  Mass.  325.  9 

Am.  Rep.  38 491,  494 

v.  Palmer,  4  Mass.  147 431 

v.  Small,  2  Ch.  Cas.  103....  376 

v.  State,  103  Ala.  72 688, 

690,  695,  789,  793,  794 
v.  State,  32  Tex.  Crim.  Rep. 

625 791 

v.  White,  1  Swab.  &  T.  592, 
6  Jur.  N.   S.   28,  L.  T. 

N.  S.  197 750 

v.  Wilson,  13  Ves.  Jr.87.__ 

292,  317,  479,  481 

White's  Will,  121  N.  Y.  406 

295,  298,  359 
Whitenack  v.  Stryker,  2  N.  J.  Eq. 

8 319, 

320,  430,  451,  459,  478, 
481.  492,  531,  562,  576,  734 
Whitesides  v.  Greenlee,  2  Dev.  Eq. 

152 724 

Whitman  v.  Morey,  63  N.  H.  448. 

495,  496,  521,  525 
Whitney  v.  State,  8  Mo.  165.  683,  782 
v.  Twombley,  136  Mass.  145 

225,  285,  288,  296 
Wickwire's  Appeal,  30  Conn.  86..  511 
Wigglesworth  v.  Steers,  1  Hen.  & 
M.  70,  3  Am.  Dec.  602. 

719,  725 
Wightman  v.  Wishtman,  4  Johns. 

Ch.  343 383,  386 

Wilber«.  Wilber,  129  111.  392.... 

320,  451,  462 


Wilcox  v.  Jackson,  51  Iowa,  208..  720 

v.  State,  94  Term.    106 

129.  131,  168,  169.  172, 
175,  561,  590,  598,  683,  085 
Wilder  v.  Weakley,  34  Ind.  181..  244 
Wiley  v.  Ewalt,  66  111.  26.251,  253,  741 
Wilkerson®.  Com.  88  Ky.  29.693,  714 
Wilkinson  «.  Pearson,  23  Pa.  117. 
489,  491,  500,  502,  558, 

582,  584 
Willcox  v.  Jackson,  51  Iowa,  208.  725 

Willemin  v.  Dunn,  93  III.  511 

251,  258,  270,  271 

Willett  v.  Porter,  42  Ind.  250 

9,  275,  294,  521,  522 
Williams  v.  Edmunds,  75  Mich.  92 

783,  785 
v.  Gonde,  1  Hagg.  Eccl.  Rep. 

577 340,  372,  952 

0.  Goss,  43  La.  Ann.  868... 

744.  746,  750 
v.  Haid,  118  N.  C.  481. .451,  452 
0.  Inabnet,  1  Bail.  L.  343...  719 

v.  Lee,  47  Md.  321 346, 

559,  561,  568,  580,  601,  604 
v.  Robinson,   42  Vt.   658,  1 

Am.  Rep.  359 461,  476 

v.  Spencer,  150  Mass.  346,  5 

L.  R.  A.  790 600,  601 

0.  State,  81  Ala.   1,  60  Am. 

Rep.  133 682 

0.  State,  50  Ark.  517. ...127, 

173,  175,  180,  466,  594 
0.  State,  7  Tex.  App.  163...  131 
0.  State,  25  Tex.  App.  76. . 

683,  698,  711,  716 

v.  State,  12  Lea,  211 791 

v.  Williams,  90  Ky.  28.309,  567 
Williamson  v.   Williams,  3  Jones 

Eq.  446 386 

Willis  0.  Com.  32  Graft,  928 

163,  683,  687,  698,  708.  790 
0.  People,  32  N.  Y.  715,  5 
Park.  Crim.  Rep.  621.. 
127,  130,  131,  132,  167,   188 

0.  Willis,  12  Pa.  159 

430,  431,  435 
Willwerth  0.  Leonard,  156  Mass. 

277 ..431,  432 

Wilson  v.   Bigger,  7   Watts  &  S. 

Ill 731 

0.  Mitchell,  101  Pa.  495 

288,  307,  312,  313,  364,  478 
0.  Oldham,  12  B.  Mon.  55.. 

243,  247,  259 
Wilson's  Appeal,  11  W.  N.  C.  333.  307 
Case,  Ray,  Med.  Juris.  465     669 
Wiltshire  0.   Marshall,   14  Week. 

Rep.  602 727 

Winchomb   v.    Hall,    1  Ch.   Rep. 

40 264 


5a 


lxvi 


CASES    CITED. 


Winespear  v.  Accident  Ins.  Co. 
L.  R.  6  Q.  B.  Div.  42, 
Aff'g  42  L.  T.  N  S.  901 

413,  1068 
"Wintermute  v.   Wilson,  28  N.  J. 

Eq.  437 277 

Wintermute's  Case,  27  N.    J.  Eq. 

447 352 

Will,  136  N.  Y.  515 335 

Wirebach  v.  First  Nat.  Bank,  97 
Pa.  549,  39  Am.   Rep. 

821 249 

Wise  v.  Foote,  81  Ky.  10 284, 

310,  507,  559,  600 

».  State,  34  Ga.  348 777 

Wisener  v.  Maupin,  2  Baxt.  342-- 

286,  587 
Wiser  v.  Lockwood,  42  Vt.  720. ._ 

383,  387 
Witkington  v.  Witkington.  7  Mo. 

589  .-. 321 

Witkrow  v.  Smitkson.  37  W.  Va. 

757,  19  L.  R.  A.  762...  401 

Witte  v.  Gilbert,  10  Neb.  539 9 

Wogan  o.  Small,  11  Serg.  &  R.  131 

559,  584 

Wood  v.  Bayard,  6?.  Pa.  320 401 

v.  Sawyer,  1  Phill.  L.  251  .. 

343,  498,  508,  513,  553 
v.  State,  34  Ark.  341,  36  Am. 

ReD.  13 691 

v.  State",  58  Miss.  741 

558,  596,  600 

v.  Wood,  4  Brewst.  75 

279,  289,  435 
v.  Wood,    1   Pkillim.    Eccl. 

Rep.  357 370 

Woodbury  v.  Obear,  7  Gray,  467.  . 

499,  541 
v.  Woodbury.  141  Mass.  330, 

55  Am.  Rep.  479 378 

Woodcock  v.  Joknson,  36  MiDn. 

217 498,  559,  573,  588 

Woodfall's  Will,  7  Pkila.  528.277,  350 
Woodgate  ».  Taylor,  2  Swab.  &T. 
512,  30  L.  J.  Mat.  N.  S. 
197,  5L.  T.  N.S.  119.-  396 
Woodbull  v.  Wkittle,  63  Mick.  575 

515,  614 
Woods  v.  Brown,  93  Ind.  164,  47 

Am.  Rep.  369 401 

v.  Pindall,  1  Wright  (Okio) 

507. 729,  731 

v.  Tipton  County  Comrs.  128 

Ind.  289 770 

Woods's  Estate,  13  Phila.  236.277,  363 
Woodson  ».  Gordon,  Peck  (Tenn.) 

196.  14  Am.  Dec.  743..  720 
Wortkington   v.   Major,   94   Mick. 

325.. 272 


Wortbinston  v.   Mencer,   96  Ala. 
"  310,  17  L.  R.  A.  407... 

453,  607,  610,  612 
Wortky  v.  Wortky,  36  Ga.  45,  91 

Am.  Dec.  758 395 

Wrav  v.  Wray,  19  Ala.  522 392 

"  v.  Wray,  33  Ala.  187.. .393,  477 

v.  Wray,  32  Ind.  126 

247,  248,  453 
Wrigkt  v.  Doe,  Tatkam,  1  Ad.  & 

El.  3... 528 

v.  Doe,    Tatkam,    7   Ad.   & 
El.  313,  4  Bing.  N.  C. 

489 508 

v.  Fisker,  65  Mick.  275 

399,729,  757 

v.  Jackson,  59  Wis.  569 

253,  269,  489 
v.  Lewis,  5  Rick.  L.  212,  55 

Am.  Dec.  714 242,  275 

v.  People,  4  Neb.  407 

23,  172,  176,  457,  472 
v.  Wrigkt,  139  Mass.  177... 

246,  478,  482,  494 
Wurzell  v.  Beckman,  52  Mick.  478.  499 

Wyman  v.  Gould,  47  Me.  159 

539,  564,  565 
Wynn  v.  Allard,  5  Watts  <fc  S.  524. 

776,  784 
Wynne  v.  Newman,  75  Va.  816...  401 


Y. 


Yanke  v.  State,  51  Wis.  464 

561.  573,  579 
Yardley  v.   Cuthbertson,   108  Pa. 
395,  56  Am.  Rep.  218.. 
311,  366.  367,  540,  542,  585 

YarnaH's  Will,  4  Rawle,  46 370 

Yarrow  v.  Yarrow  (1892)  P.  92...  392 
Yates*.  Boen,  2  Strange,  1104. _.  429 
Yauger  v.  Skinner,  14  N.  J.  Eq. 

389 430,  435, 

437,  438,  531 
Yeates  v.  Reed,  4  Blackf.  463,  32 

Am.  Dec.  43 207,  528 

Yglesias  v.  Dyke,  Prerog.  Ct. 
(1852).  Cited  in  2  Tay- 
lor,   Prin.    Med.   Juris. 

556 343 

Yoe  v.  McCord,  74  111.  33 

277,  278,  280,  286,  291,  292 

Youn  v.  Lamont,  56  Minn.  216 

728,  730,  778 

Young  v.  Barner,  27  Gratt,  96 

323.  330,  599,  601 
v.  Miller  (Ind.)  44  N.  E.  757.  281 
v.  Otto,  57  Minn.  307. .288,  376 


OASES    CITED. 


lxv 


Young  ».Ridenbaugh,  67  Mo.  574 

274,    281,  286,  287,  288,  315 

v.  Stevens,  48  N.  H.  133  2 
Am.  Rep.  202,  97  Am 
Dec.  592.. 245,  315 

«.  Wilmington  &  W.  R  Co 

116  N.  C.932. 570,  769 

v.  Young,    10    Grant,    Ch. 
(U.  C.)  365.... 246,  479,  481 
Youngs  v.  Youngs,  130  III.  230,  6 

L.  R.  A.  54S..395,  744,  808 


Z. 


Zeltner  v.  Bodman  German  Protes- 
tant Widows'  Home  1 
Ohio  Dec.  306  274 

Ziegler's'Case,  47  N.  Y.  S.  R  49 1 ' 
Zimlicb  v.  Zimlicb,  12  Ky  L  Reo 

590 "____'_ 

Zimmerman  v.  Masonic  Aid  Asso 
_    .  ,  75 Fed.  Rep.  236... 407' 

Z  wicker  v.  State,  27  Tex.  App.  539 


2S6 

360 

310 

412 
791 


MEDICAL 
JURISPRUDENCE  OF  INSANITY 


CHAPTER   I. 
INTRODUCTION. 

A  Medical  Jurisprudence  of  Insanity  for  practical  purposes 
should  set  forth  clearly  and  fully  our  present  knowledge  concern- 
ing mental  disease,  with  special  regard  to  its  legal  relations ;  and 
precisely  as  the  exactness  of  modern  research  in  this  field  is 
demonstrated  to  intelligent  jurists,  so  will  there  be  improvement 
of  the  common  and  statutory  laws  relative  to  insanity. 

Psychiatry  has  become  a  science  in  the  last  few  decades, 
and,  as  compared  with  former  periods,  our  available  informa- 
tion upon  matters  pertaining  to  insanity  is  now,  not  only  exten- 
sive, but  of  such  exactitude  that  divergences  of  opinion  among 
"experts"  upon  essential  points  in  diagnosis  and  the  character- 
istics of  insanity  are  apt  to  be  due  to  discreditable  causes. 

Though  scientific  and  medical  books  may  not  be  used  in  evidence, 
appeals  can  be  legitimately  made  to  recognized  standard  works 
in  testing  the  knowledge  and  consistency  of  an  expert  witness. 
He  must  admit  or  deny  the  correctness  of  certain  authors  whose 
writings  are  referred  to  in  this  work,  which,  in  some  instances, 
are  quoted  at  length. 

Much  has  been  said  about  the  conservatism  of 'the  law,  particu- 
larly with  regard  to  decisions  concerning  insanity ;  but  though 
much  past  inconvenience  may  have  been  entailed  by  this  pro- 
verbial slowness,  it  has  insured  stability  whenever  an  advance  has 
been  made,  and  protection  against  disastrous  vacillation. 

In  the  year  1838,  Dr.  Isaac  Ray's  Jurisprudence  of  Insanity 
was  published,  and   the  larger  part  of  his  book,  if    rearranged 

1 


2  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

upon  the  lines  of  our  present  knowledge  of  insanity,  or  read  by- 
one  schooled  therein,  is  not  only  valuable  to-day,  to  physicians 
and  jurists  alike,  but  is  simply  inimitable,  both  as  regards  the 
material  accumulated  and  the  manner  in  which  it  is  presented. 
Ray  was  intellectually  superior  to  his  period  and  surroundings, 
notwithstanding  the  evidences  of  his  having  been  influenced  in 
some  respects  by  the  want  of  knowledge  of  his  time.  His  most 
unfortunate  advocacy  of  "moral  mania,"  which  proved  in  many 
instances  to  be  but  a  symptom  of  various  kinds  of  mental  derange- 
ment, has,  more  than  anything  else,  curtailed  the  usefulness  of  his 
Jurisprudence ;  and  in  this  we  have  an  instance  of  the  obtuseness 
of  the  times  failing  to  appreciate  much  of  what  a  brilliant  mind 
had  evolved,  leaving  to  a  later  period  the  sifting  of  cases,  which 
he  cited  mainly  from  Prichard  and  Grail,  until  we  now  know  that, 
while  "moral  mania"  is  an  unjustified  designation,  inasmuch  as 
the  immorality  was  consequent  upon  (what  can  now  be  demon- 
strated as)  insanity  of  various  forms,  there  is  such  a  disorder, 
fortunately  not  very  common,  as  moral  imbecility,  and  there  are 
degenerates  with  homicidal  impulses,  who,  by  the  way,  seldom 
carry  out  their  inclinations  of  that  nature ;  and  these  were  con- 
fusedly mingled  with  paretic  dements,  paranoiacs,  maniacs,  epilep- 
tics, and  even  terminal  dements,  until  the  moral  defects  of  these 
insane  persons  stood  forth  almost  unrelieved  by  narration  of  other 
symptoms  of  insanity.  When  a  more  accurate  study  and.  classifi- 
cation had  been  made,  what  was  called  "general  moral  mania" 
was  in  many  cases  shown  to  be  "monomania,"  but  these  two 
designations  were  fought  on  the  ground  of  their  describing  what 
it  was  difficult,  and  at  times  impossible,  to  prove,  through  assuming 
that  the  names  should  be  taken  literally,  until  the  term  "  paranoia" 
put  at  end  to  the  misconceptions.  Faulty  etymology  has  caused  a 
large  share  of  the  war  that  has  been  waged  upon  science  and 
medicine. 

The  "  Preliminary  Yiews  "  of  Pay  in  his  Jurisprudence  contain 
much  interesting  historical  information  as  to  the  disastrous  results 
of  too  rigid  adherence  to  traditional  interpretation  of  the  law 
where  insanity  was  involved ;  and  the  influence  of  Lord  Hale  in 
fostering  almost  savage  conceptions  of  what  constituted  insanity 
is  discussed  at  length.  But  since  that  time  such  changes  have 
been  effected  in  English  and  American  judicial  views  of  responsi- 


INTRODUCTION.  3 

bility,  tests  of  insanity,  etc.,  that  these  later  opinions  claim  most 
attention,  though  here  and  there  the  ancient  dicta  obtrude. 

So  vast  is  the  domain  of  general  medical  jurisprudence,  and  so 
rapidly  has  specialism  in  the  different  branches  of  medicine  devel- 
oped, that  no  single  author  can  do  justice  to  all  the  subjects 
included.  Better  results  are  secured  through  a  toxicologist  confin- 
ing himself  to  the  medical  aspects  of  poisons  with  the  collabora- 
tion of  one  versed  in  the  law.  An  alienist  should  similarly  treat 
of  insanity  only.  Much  of  the  insufficiency  and  confusion  of 
voluminous  works  on  medical  jurisprudence  have  been  directly  due 
to  the  authors  not  being  specially  versed  in  the  subjects  they 
handled.  A  good  chemist  cannot  do  justice  to  psychiatry,  nor 
should  an  alienist  attempt  instruction  outside  of  his  particular 
province.  Differentiation  and  division  of  labor  achieve  the  best 
work  in  all  directions. 

The  diseased  states  caused  by  alcoholism,  and  the  modern  doc- 
trine that  the  addiction  itself  is  often  a  disease,  or  a  form  of 
insanity,  suggest  the  revision  of  older  methods  of  dealing  with 
inebriates  and  holding  them  to  a  too  rigid  accountability. 

Head  injuries  are  prolific  sources  of  mental  degradation,  and 
until  recently  they  were  but  imperfectly  studied. 

Degeneration  as  a  special  department  of  psychiatry  has  received 
a  great  amount  of  attention  by  French  alienists,  and  the  results  of 
their  researches  are  of  immense  value  to  both  physicians  and 
lawyers. 

The  abandonment  of  some  misnomers,  such  as  "monomania" 
and  "general  paralysis  of  the  insane,"  has  disposed  of  annoying 
misapprehensions  and  useless  wrangling,  in  and  out  of  court-rooms. 

Insanity  in  general,  its  causes,  nature,  pathology,  and  treatment, 
are  incomparably  better  understood  than  when  the  older  works  on 
medical  jurisprudence  were  written;  and,  inevitably,  whenever 
the  law  has  proved  laggard  in  keeping  step  with  alienistic  science 
there  can  be  greater  expectation  of  future  legal  adjustment  to 
late  discoveries  and  elucidations  through  a  spread  of  information 
as  to  what  constitutes  such  knowledge. 

The  discrepancy  between  the  laws  in  criminal  and  civil  cases, 
and  antiquated  errors  concerning  tests  of  insanity  and  responsi- 
bility, still  tincture  our  legal  text-books,  almost  to  the  extent  Ray 
deplored  in  the  earlier  part  of  the  nineteenth  century ;  but  inci- 


4:  MEDICAL    JDKISPKDDENCE    OF    INSANITY. 

dentally  these  matters  will  be  remarked  in  their  appropriate  places 
in  this  book. 

The  use  of  technical  terms  is  minimized  throughout,  though  it 
is  impossible  to  dispense  with  them  altogether;  and  it  should  be 
more  widely  known  that  certain  expressions  commonly  used 
loosely  and  synonymously  have,  in  psychiatry,  precise  meanings, 
the  understanding  of  which  would  aid  materially  in  the  intelligent 
use  of  any  treatise  upon  insanity.  For  example,  "imbecility" 
and  "dementia"  are  not  identical;  nor  are  "hallucinations," 
"illusions,"  and  "delusions"  interchangeable,  as  will  be  seen  by 
reference  to  descriptions  of  such  phenomena.  Proper  use  of  the 
index  will  assist  greatly  in  the  comprehension  of  what  may  appear 
to  be  obscure  to  those  unaccustomed  to  the  literature  of  insanity. 


CHAPTER  II. 

DEFINITIONS. 

The  universal  relativity  of  things  makes  exact  definition  an 
impossibility.,  and  the  difficulty  of  describing  either  simple  or 
complex  phenomena  in  the  limits  of  a  treatise  is  apparent  enough 
to  prevent  educated  persons  from  expecting  completeness  in  any 
dictionary  paragraph. 

The  accepted  mathematical  definition  of  a  point  is  absurd,  and 
Herbert  Spencer1  remarks : 

"To  those  who  accept  the  general  doctrine  of  evolution  it 
needs  scarcely  be  pointed  out  that  classifications  are  subjective 
conceptions  which  have  no  absolute  demarcations  in  nature  cor- 
responding to  them.  They  are  appliances  by  which  we  limit 
and  arrange  the  matters  under  investigation,  and  so  facilitate  our 
thinking.  Consequently,  when  we  attempt  to  define  anything 
complex,  or  make  a  generalization  of  facts  other  than  the  most 
simple,  we  can  scarcely  ever  avoid  including  more  than  we  in- 
tended, or  leaving  out  something  that  should  be  taken  in.  Thus 
it  happens  that  on  seeking  a  definition  of  '  life,'  we  have  great 
difficulty  in  finding  one  that  is  neither  more  nor  less  than 
sufficient."  His  definition  of  life  is :  "  The  continuous  adjust- 
ment of  internal  relations  to  external  relations." 

As  corollaries,  death  would  be  the  cessation,  and  disease  an  in- 
terference with,  such  adjustment ;  mental  disease  becoming  an 
interference  with  the  continuous  adjustment  of  internal  relations 
to  external  relations  requisite  to  intelligent  actions. 

Convulsions,  sleep,  mental  preoccupation,  fainting,  it  could  be 
contended,  are  improperly  included  in  that  definition,  as  well  as 
some  nervous  disorders  not  regarded  as  insanity;  but  the  con- 
cluding words  could  shift  the  burden  upon  the  definition  of 
"  intelligence." 

There  can  be  endless  quarrels  over  any  definition ;  such  debates 
were  common  in  benighted  historical  periods  when  scholasticism, 
or  sophistry  in  general  was  considered  erudition. 

'Principles  of  Biology,  L,  chap.  L. 


6  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

Spitzka1  states  that  "none  of  the  most  recent  German  writers 
on  insanity  attempt  to  give  a  definition  of  insanity.  The  chief 
discussion  of  the  possibility  of  concocting  such  a  definition  has 
taken  place  in  the  Anglo-Saxon  countries ;  and  this,  for  reasons  it 
is  not  necessary  to  dilate  on,  indicates  that  the  chief  need  for  the 
definition  is  a  medico-legal  one.  If  this  want  were  not  the  chief 
motor  it  is  doubtful  whether  an  English  author  on  lunacy  (Shep- 
ard)  would  have  offered  such  a  definition  as  '  Insanity  is  a  disease 
of  the  neurine  batteries  of  the  brain '  with  such  an  object  as  his 
avowed  one  of  puzzling  the  lawyers." 

Lord  Chief  Justice  Coleridge  is  said  to  have  addressed  a  wit- 
ness, when  requested  by  counsel  to  define  insanity :  "  I  suppose 
you  do  not  consider  that  that  is  possible,  seeing  that  it  assumes  so 
many  forms." 

The  best  possible  witness-stand  definition  of  insanity  is  that  it 
is  "  an  absence  of  sanity,"  and  the  matter  is  thereupon  dropped, 
with  possibly  a  few  words  as  to  the  reason  for  making  such  an 
answer.  The  question  is  usually  asked  by  attorneys  for  the  pur- 
pose of  entrapping  the  witness. 

In  old  times  distinctions  were  made  between  lunacy  and  in- 
sanity, based  upon  the  supposition  that  the  moon's  phases  con- 
trolled the  lunatic.  Such  arbitrary  divisions  could  be  as  well 
carried  to  sickness  and  disease  ;  the  ailing  and  the  unwell ;  though 
ladies  conveniently  monopolize  the  latter  term,  somewhat. 

Attempts  were  made  to  restrict  "  unsoundness  of  mind "  to 
such  instances  as  delirium  occurring  in  the  course  of  fever,  but 
as  an  insane  person  cannot  be  considered  as  of  sound  mind,  con- 
fusion and  misapprehension  were  unavoidable  in  using  a  term 
that  had  a  general  application,  for  special  purposes. 

"A  lunatic,  or  non  compos  mentis,  is  one  who  hath  had  under- 
standing, but  by  disease,  grief,  or  other  accident  hath  lost  the 
use  of  his  reason.  A  lunatic  is,  indeed,  properly  one  that  hath 
lucid  intervals,  sometimes  enjoying  his  senses,  and  sometimes  not, 
and  that  frequently  depending  upon  the  change  of  the  moon."8 

Coke  preferred  non  compos  mentis  as  the  most  legal  term,  in 
which,  besides  lunatics,  was  included  the  deaf,  dumb,  blind,  and 
other  "  frenzied  "  persons  who  had  lost  their  reason  by  disease,  or 

1  Manual  of  Insanity,  19. 
5  Bl.  Com.  30-1. 


DEFINITIONS.  I 

anyone  incapable  of  conducting  his  own  affairs.  Idiots  and  de- 
mented drunkards  would,  unintentionally,  also  be  included. 

The  idiot  was  one  who  "hath  had  no  understanding  from  his 
nativity.'"  Non  compos  mentis  included  both  idiocy  and  lunacy, 
its  former  meaning  having  expanded  in  the  course  of  time.  An 
insane  person  was  "one  whose  mind  is  affected  by  general  imbe- 
cility or  is  subject  to  one  or  more  specific  delusions."  Imbecility 
was  equivalent  to  dementia,  and  was  not  used  in  its  present  tech- 
nical medical  sense.  Religious  sects  could  each  claim  that  the 
others  were  insane  if  the  entertaining  of  delusions  were  the  test  of 
insanity. 

Partial  insanity  meant,  in  law,  that  a  person  was  "  insane  on  one 
or  more  particular  subjects  only,  and  sane  in  other  respects." 
Monomania,  or  what  is  now  called  paranoia,  corresponded  to  the 
legal  "  partial  insanity ; "  but  "  partial  insanity  "  is  liable  to  con- 
vey a  false  idea, — one  can  be  both  sick  and  well,  a  train  can  be 
off  the  track  and  on  it,  at  the  same  instant,  as  consistently  as  a 
man  can  be  partially  insane, —  and  the  term  is  used  less  and  less.2 

"  Lunacy  "  is  now  synonymous  with  "  insanity,"  and  "  lunatic  " 
is  defined  to  mean  "  every  insane  person,  and  every  person  being 
an  idiot  or  lunatic  or  of  unsound  mind."3 

In  the  Revised  Statutes,  and  in  any  act  or  resolution  of  Con- 
gress passed  subsequently  to  February  1,  1871,  the  words  "  insane 
person"  and  "lunatic"  include  every  idiot,  non  compos,  and  in- 
sane person." 

i  Bl.  Com.  303. 

''For  legal  discussion  as  to  partial  insanity,  see  chap.  VII.,  IT.,  p.  164. 

3  8  &  9  Vict.  chap.  100,  §  94.     See  also  16  &  17  Vict.  chap.  39. 

4 The  courts  have  defined  insanity  in  its  different  phases  as  follower 

Insanity  in  its  legal  aspect  is  a  marked  departure  of  an  individual  in  his 
modes  of  thought,  state  of  feeling,  and  course  of  action,  habits,  and  tastes 
from  his  manifestations  in  this  regard  when  in  normal  health.  He  Jones, 
2  Ohio  Dec.  409. 

Legal  insanity  is  a  disorder  of  the  intellect.  Re  Forman's  Will,  54 
Barb.  274. 

It  is  such  a  derangement  of  the  mental  faculties  that  the  individual  has 
lost  the  power  of  reasoning  correctly.  Waters  v.  Connecticut  Mut.  L.  Ins. 
Co.  2  Fed.  Eep.  892. 

It  is  a  diseased  or  disordered  condition  or  malformation  of  the  physical 
organs  through  which  the  mind  receives  impressions  or  manifests  its  opera- 
tions, by  which  the  will  and  judgment  are  impaired  and  the  conduct  ren- 


b  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

dered  irrational.  Blackstone  v.  Standard  Life  «fc  A.  Ins.  Co.  74  Mich.  532, 
3  L.  E.  A.  486. 

The  term.  "  insanity"  means  sickness  of  the  mind,  and  is  broad  enough 
to  include  every  species  of  mental  aberration.  State  v.  Wdner,  40 
Wis.  304. 

It  embraces  all  grades  and  conditions,  and  is  synonymous  -with  unsound- 
ness of  mind.     St.  George  v.  Biddeford,  76  Me.  593. 

Mental  derangement  is  the  prolonged  departure,  without  adequate  rea- 
sonable cause,  from  the  state  of  feelings  and  modes  of  thinking  essential  to 
the  individual  -when  in  health.     Mudway  v.  Croft,  3  Curt.  Eccl.  Bep.  671. 

Lunacy  is  that  condition  or  habit  in  -which  the  mind  is  directed  by  the 
•will,  but  is  -wholly  or  partially  misguided  or  erroneously  governed  by  it,  or 
it  is  the  impairment  of  one  or  more  of  the  faculties  of  the  mind  accom- 
panied -with  or  inducing  a  defect  in  the  comparing  faculty.  Owing's  Case, 
1  Bland,  Ch.  370,  17  Am.  Dec.  311. 

Delirium  is  that  state  of  the  mind  in  -which  it  acts  -without  being  directed 
by  the  po-wer  of  volition,  -which  is  wholly  or  partially  suspended ;  -what  is 
commonly  called  deliriuni  is  always  preceded  and  attended  by  a  feverish 
and  -wholly  diseased  state  of  the  body.     Owing's  Case,  supra. 

The  word  "crazy  "in  its  proper  sense  implies  a  broken,  shattered,  or 
deranged  mind,  rather  than  one  enfeebled  by  age  or  disease.  Shaver  v. 
McCarthy,  110  Pa.  339. 

Monomania  is  that  species  of  insanity  in  which  the  hallucination  is  con- 
fined to  a  single  object  or  class  of  objects,  or  a  limited  number  of  objects. 
People  v.  Lake,  2  Park.  Crim.  Bep.  215. 

Hallucination  is  a  morbid  error  in  one  or  more  of  the  senses,  a  percep- 
tion of  objects  which  do  not  in  fact  make  any  impression  upon  the  external 
senses.     Staples  v.  "Wellington,  58  Me.  453. 

Dementia  or  madness  is  that  species  of  insanity  in  which  the  person 
afflicted  is  rendered  incapable  of  reasoning  in  consequence  of  functional 
disorder  of  the  brain,  not  congenital  or  born  with  the  person.  People  v. 
Lake,  supra. 

Senile  dementia  is  that  form  of  insanity  in  aged  people  marked  by  a 
slowness  and  weakness  indicating  a  breaking  down  of  the  mental  powers  in 
advance  of  bodily  decay.     Hiett  v.  Shull,  36  W.  Ya.  561. 

Dotage  is  that  feebleness  of  the  mental  faculties  which  proceeds  from  old 
age,  consisting  of  a  diminution  or  decay  of  that  intellectual  power  which 
was  once  possessed ;  it  is  the  slow  approach  of  death.  Owing's  Case,  1 
Bland,  Ch.  370,  17  Am.  Dec.  311. 

Idiocy  is  that  condition  in  which  a  human  creature  has  never  had  from 
birth  the  least  glimmer  of  reason,  and  is  utterly  destitute  of  all  those  in- 
tellectual faculties  by  which  man  in  general  is  mentally  and  peculiarly 
distinguished.     Owing's  Case,  supra. 

It  consists  of  a  total  want  of  reasoning  powers  from  malformation  of  the 
organ  of  thought  at  the  time  of  birth.  People  v.  Lake,  2  Park.  Crim. 
Rep.  215. 


DEFINITIONS.  9 

An  idiot  is  a  person  who  is  without  mind  from  birth.  Donegal's  Case, 
2  Ves.  Sr.  407. 

A  sound  mind  is  one  wholly  free  from  delusion,  with  all  the  intellectual 
faculties  existing  in  a  certain  degree  of  vigor  and  harmony,  the  propen- 
sities, affections,  and  passions  being  under  subordination  of  the  judgment 
and  will,  the  former  being  the  controlling  power,  with  a  just  perception  of 
the  natural  connection  or  repugnancy  of  ideas.  Duffield  v.  Eobeson,  2 
Harr.  (Del.)  375. 

The  terms  "disposing  capacity  of  mind,"  "a  sound  mind,"  and  "  testa- 
mentary mind,"  are  alternative  or  synonymous  phrases  in  the  law  of  wills. 
Clements  v.  McGinn  (Cal.)  33  Pac.  920. 

Unsoundness  of  mind  consists  of  incapacity  to  struggle  against  delusion. 
Waring  v.  Waring,  12  Jur.  947. 

The  term  "of  unsound  mind"  when  used  in  a  legal  sense  means,  not 
merely  imbecility  of  mind,  but  is  synonymous  with  non  compos  mentis, 
implying  a  total  deprivation  of  reason,  idiocy,  lunacy,  and  adventitious 
madness,  either  temporary  or  permanent,  remedial  or  irremedial.  Jenkins 
v.  Jenkins,  2  Dana,  103,  26  Am.  Dec.  437. 

As  used  in  the  New  York  statute  concerning  wills,  it  is  synonymous 
with  non  compos  mentis.     Stanton  v.  Wetherwax,  16  Barb.  267. 

As  used  in  the  Indiana  statute  with  re]ation  to  insanity,  it  includes  every 
species  of  insanity  or  mental  unsoundness  arising  from  whatever  cause. 
Burhart  v.  Gladish,  123  Ind.  338;  McCammon  v.  Cunningham,  108  Ind. 
545 ;  Walker  v.  State,  102  Ind.  502 ;  Willett  v.  Porter,  42  Ind.  250.  And 
insanity  cannot  be  said  to  be  a  stronger  term,  or  to  include  a  greater  degree 
of  infirmity,  than  is  implied  in  the  phrase  "unsound  mind."  McCammon 
v.  Cunningham,  108  Ind.  545. 

The  words  "unsound  mind"  as  used  in  the  Nebraska  laws  with  reference 
to  vacating  or  modifying  judgments  are  used  in  the  same  sense  as  the  word 
"insane,"  and  import  a  total  deprivation  of  reason.  Witte  v.  Gilbert,  10 
Neb.  539. 

A  person  of  unsound  mind  is  an  adult  who  from  infirmity  of  mind  is 
incapable  of  managing  himself  or  his  affairs ;  the  term  includes  insane  per- 
sons, idiots,  and  imbeciles.     Clements  v.  McGinn  (Cal.)  33  Pac.  920. 

The  term  non  compos  mentis  denotes  neither  mere  mental  weakness 
nor  total  deprivation  or  destruction  of  the  mental  powers,  but  simply 
unsoundness  of  mind,  a  diseased  or  unhealthy  mind.  Formerly,  however, 
it  was  held  to  import  a  total  deprivation  of  understanding.  Jackson  v. 
King,  4  Cow.  207,  15  Am.  Dec.  354 ;  Ex  parte  Barnsley,  3  Atk.  168. 

The  words  "non  sane  memory,"  in  the  Statutes  7  Geo.  II.  chap.  14,  in- 
clude all  persons  of  that  description,  whether  idiots  or  lunatics.  Carew  v. 
Johnston,  2  Sch.  &  Lef.  280. 

Weakness  of  mind  is  a  sort  of  mental  imbecility  approaching  to  the  con- 
dition of  non  compos  mentis,  and  analogous  to  childishness  and  dot:ige. 
Owing's  Case,  1  Bland,  Ch.  370,  17  Am.  Dec.  311.  Weak  minds  differ 
only  from  strong  ones  in  the  extent  and  power  of  their  faculties,  but  unless 


10  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

"W.  C.  Anderson'  sums  up  the  entire  matter  in  his  statement 
that  "  most  of  the  definitions,  so  called,  are  merely  sententious 
descriptions  of  the  disease.  It  is  impossible  to  frame  a  perfectly 
consistent  definition.  Xo  words  can  comprise  the  different  forms 
and  characters  the  malady  may  assume.  .  .  .  The  law,  being 
neither  a  medical  nor  a  metajDhysical  science,  has  no  theory  on  the 
subject  of  diseases  of  the  brain.  It  seeks  practical  rules  which 
may  be  administered  without  inhumanity,  for  the  security  of  so- 
ciety, by  protecting  it  from  crime.  It  holds  every  man  respon- 
sible who  is  a  free  agent.  'Insanity'  is  really  not  a  legal  term." 
Nevertheless,  various  more  or  less  erroneous  theories  of  in- 
sanity have  been  adopted  by  the  law,  and  have  been  erected  into 
"tests,"  remaining  as  Procrustean  beds  into  which  "legal  in- 
sanity "  must  be  made  to  tit. 

At  one  time  it  was  required  that  the  patient  should  be  uncon- 
scious of  his  disease  to  constitute  him  insane,  in  the  face  of  the 
fact  that  often  suicide  results  from  a  recognition  of  the  insanity 
by  the  patient,  and  that  the  insane  sometimes  seek  voluntary 
commitment. 

Exemption  of  the  insane  from  punishment,  and  the  vitiation  of 
some  of  their  civil  acts,  led  to  the  adoption  of  more  or  less  erro- 
neous "tests  of  insanity"  at  a  time  when  the  world  was  in  com- 
parative ignorance,  particularly  with  regard  to  disease  of  any  kind. 
Opinions  concerning  insanity  as  a  disease  have  been  changing 
through  the  labor,  opportunities,  observation,  and  study  of  alien- 
ists ;  and  the  legal  view  of  insanity  should  be  based  upon  demon- 
strated facts.  On  this  point  Isaac  Ray2  remarks :  "  That  much 
of  the  jurisprudence  of  insanity,  in  times  past,  should  bear  the 
marks  of  the  crude  and  imperfect  notions  that  have  been  enter- 
tained of  its  pathological  character,  is  not  to  be  wondered  at ;  but 
it  is  a  matter  of  surprise  that  it  should  be  adhered  to,  as  if  con- 
secrated by  age,  long  after  it  has  ceased  to  be  supported  by  the 
results  of  more  extensive  and  better-conducted  inquiries.  It  is 
to  be  feared  that  the  principles  laid  down  on  this  subject  by  legal 

they  betray  symptoms  of  a  total  loss  of  understanding,  or  of  idiocy  or  delu- 
sion, they  cannot  properly  be  considered  unsound.  Duffield  v.  Robeson, 
2  Harr.  (Del.)  375. 

1  Law  Diet.  (1890)  549. 

5  Medical  Jurisprudence  of  Insanity,  Preliminary  Views. 


DEFINITIONS.  11 

authorities  have  been  viewed  with  too  much  of  that  reverence 
which  is  naturally  felt  for  opinions  and  practices  of  our  ancestors ; 
and  that  innovations  have  been  too  much  regarded  rather  as  the 
offspring  of  new-fangled  theories  than  that  of  steady  advance- 
ment of  medical  science." 

An  idiot  was  defined'  as  "  one  who  cannot  count  or  number 
twenty  pence,  nor  who  can  tell  who  was  his  father  or  mother,  nor 
how  old  he  is,  etc.,  so  as  it  may  appear  that  he  hath  no  under- 
standing of  reason.  But  if  he  have  sufficient  understanding  to 
know  and  understand  his  letters,  and  to  read  by  teaching  or  in- 
formation, he  is  not  an  idiot."  Most  idiots  are  capable  of  some 
instruction,  and  the  one  who  may  read  and  write  quite  well  may 
be  more  profoundly  idiotic  than  another  who  shows  incapacity 
for  such  matters,  but  equal  or  greater  ability  in  some  other  direc- 
tion. 

The  English  common  law7  originally  recognized  but  two  kinds 
of  insanity  :  idiocy  and  lunacy,  both  being  classed  as  non  compotes 
mentis.  Attempts  were  made  to  distinguish  those  to  whom  the 
term  could  be  applied.  Lord  Coke  divides  those  who  are  non 
compotes  mentis  into  :  (1)  An  idiot,  who  from  his  nativity  by  a 
perpetual  infirmity  is  non  compos  •  (2)  he  that  by  sickness,  grief , 
or  other  accident,  wholly  loseth  his  memory  and  understanding ; 
(3)  a  lunatic  that  hath  sometimes  his  understanding  and  some- 
times not,  and  therefore  he  is  called  non  compos  mentis  so  long 
as  he  hath  not  understanding  ;  (4)  he  that  by  his  own  vicious  acts 
for  a  time  depriveth  himself  of  his  memory  and  understanding, 
as  he  that  is  drunken. 

Entire  loss  of  memory  and  understanding  occurs  in  only  a  few 
acute  insanities  and  during  the  last  stages  of  terminal  dementia, 
so  that  a  large  proportion  of  the  insane-asylum  population  would 
be  excluded  from  Coke's  second  division ;  and  as  lucid  intervals 
may  or  may  not  occur  in  many  insanities  the  third  division  would 
exclude  all  but  intermittent  cases,  except  towards  the  period  of 
convalescence,  when  lucid  intervals  are  more  common.  Hence,  a 
dangerously  insane  patient  could  not  be  legally  insane  in  Coke's 
view  until  he  wholly  lost  memory  and  understanding,  or  showed 
signs  of  intermittence  of  his  lunacy. 

'  Fitzherbert,  Natura  Brevium,  ed.  1652,  583. 


12  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

Technical  distinctions  with  no  warrant  in  facts  for  their  exist- 
ence, when,  as  often  happens,  they  are  rigidly  applied,  are  capa- 
ble of  working  great  wrong. 

So  many  mentally  infirm  were  found  to  have  been  omitted  by 
these  olden  descriptions  of  what  constituted  non  compotes  mentis, 
that  the  omnibus  "  unsound  mind  "  was  created  to  gather  in  these 
neglected  cases.  Nor  was  there,  by  any  means,  agreement  as  to 
-  what  constituted  "  unsoundness  of  mind."  Lord  Hardwicke1  held 
that  unsoundness  of  mind  did  not  mean  mere  weakness  of  mind, 
but  a  depravity  of  reason  or  the  want  of  it.  Lord  Eldoir  men- 
tioned an  aged  person  "  whose  mind  was  the  mind  of  a  child.  It 
was  therefore,  in  that  sense,  imbecility  and  inability  to  manage 
his  affairs,  which  constituted  unsoundness  of  mind."  Previously 
the  same  authority  had  issued  a  "  commission  of  lunacy  inquest 
in  the  case  of  one  who  was  unable  to  act  with  any  proper  and 
provident  management;  liable  to  be  robbed  by  anyone;  under 
the  imbecility  of  mind,  not  strictly  insanity,  but,  as  to  the  mis- 
chief, calling  for  as  much  protection  as  insanity." 

The  main  issue,  in  many  civil  cases,  is  as  to  whether  a  person 
is  capable  of  managing  his  own  affairs  or  not,  and  the  custom  of 
fastening  a  wholly  unnecessary  designation,  such  as  insanity, 
imbecility,  or  unsoundness  of  mind,  upon  the  infirmity,  and  thus 
adding  a  stigma — for  such  it  is  in  popular  estimation — to  the 
misfortune,  should  be  abandoned.  It  should  suffice  that  the 
person  is  incapacitated  "  by  reason  of  sickness,"  which  would 
be  a  merciful  and  just  substitute  for  the^  often  less  accurate  term 
denoting  some  kind  of  mental  impairment,  the  boundaries  and 
precise  application  of  which  are  often  beyond  the  knowledge 
of  anyone,  particularly  jurors,  who  are  often  uneducated  and  in- 
capable of  understanding  such  fine  distinctions  as  the  difference 
between  unsoundness  of  mind  and  insanity,  even  when  explained 
to  them.  Any  juror  can  understand  that  the  head  may  not  be 
right  through  sickness,  old  age,  etc. 

Test.  Lord  Hale,3  conceiving  that  only  the  strength  and  capac- 
ity of  the  mind  were  affected  by  insanity,  originated  a  test  of 
criminal  responsibility  :     "  Such  a  person  as,  laboring  under  mel- 

1  Ex  parte  Barnsley,  3  Atk.  168. 

2  Haslam,  Medical  Jurisprudence  as  it  Relates  to  Insanity,  COG. 

3  Pleas  of  the  Crown,  30. 


DKK1JMITIONS.  13 


ancholy  distempers,  hatli  yet  ordinarily  as  great  understanding  as  ) 
ordinarily  a  child  of  fourteen  hath,  is  such  a  person  as  may  be  ' 
guilty  of  treason  or  felony." 

The  pernicious  influence  of  that  "test"  is  mentioned  by  every 
writer  on  insanity  since  its  establishment.  There  is  vastly  more 
than  mere  capacity  and  strength  of  mind  involved  in  insanity, 
but  in  Lord  Hale's  view  every  child  of  thirteen  would  be  insane, 
or  all  insane  would  be  of  the  mental  gauge  of  such  children. 

Justice  Tracy1  followed  Hale  in  observing  "that  it  is  not  every 
kind  of  frantic  humor,  or  something  unaccountable  in  the  man's 
actions,  that  points  him  out  to  be  such  a  madman  as  is  to  be  ex- 
empted from  punishment;  it  must  be  a  man  that  is  totally  de- 
prived of  his  understanding  and  memory,  and  doth  not  know 
what  he  is  doing,  no  more  than  an  infant,  than  a  brute,  or  a  wild 
beast ;  such  a  one  is  never  the  object  of  punishment." 

A  short  residence  in  an  insane  asylum  would  be  a  valuable  part 
of  a  legal  course  for  jurists  who  frame  dicta  concerning  insanity 
and  its  possibilities.  Tracy  would  have  seen  in  such  institutions 
multitudes  of  insane  who  were  fully  capable  of  crimes,  and  yet  who 
could  not  be,  even  at  the  time  of  committing  crime,  regarded 
as  deprived  of  their  understanding  to  the  extent  he  men- 
tions. 

Sir  Vicary  Gibbs,  the  English  attorney  general,  on  the  trial  of 
Bellingham  in  1812,  declared  that  "  a  man  may  be  deranged  in  his 
mind,  his  intellect  may  be  insufficient  for  enabling  him  to  conduct 
the  common  affairs  of  life,  such  as  disposing  of  his  property,  or 
judging  of  the  claims  which  his  respective  relations  have  upon 
him ;  and  if  he  be  so,  the  administration  of  the  country  will  take 
his  affairs  into  their  management  and  appoint  to  him  trustees ; 
but  at  the  same  time,  such  a  man  is  not  discharged  from  his 
responsibility  for  criminal  acts."  2 

French  commentators  accused. Hale  and  his  school  of  "making 
more  account  of  property  than  of  life."  Virtually,  the  claim  is 
thus  made  that  the  mind  is  less  influenced  by  insanity  in  meditat- 
ing a  crime  than  when  making  a  contract  or  will. 

The  French  Penal   Code  exempts  madness,   unconditionally, 

1  Arnold's  Case  (1723),  16  How.  St.  Tr.  764,  Harg.  St.  Tr.  322. 
•1  Collinson,  Lunacy,  657. 


14  MEDICAL    JURISPRUDENCE    OF    INSANITY". 

from  punishment :     "There  is  no  crime  nor  offense  when  the 
accused  was  in  a  state  of  madness  at  the  time  of  the  action."1 

Georget2  speaks  of  the  effect  of  special  verdicts  allowed  in 
France,  in  which  juries  may  declare  whether  the  accused  was 
guilty  or  not  guilty,  sane  or  insane,  and  whether  or  not  the  act 
was  committed  voluntarily.  On  one  occasion  he  cites,  a  verdict 
was  returned  that  the  accused  acted  voluntarily  and  with  pre- 
meditation, and,  secondly,  that  he  was  insane  at  the  time  of 
committing  the  act.  By  this  it  was  declared  that  the  accused 
possessed  the  will  of  a  madman,  a  merely  animal  will,  which  ex- 
cludes culpability. 

Erskine,  in  the  defense  of  Hadfield  for  shooting  at  the  King  in 
Drury  Lane  theatre  in. 1800,  challenged  the  attorney  general  to 
show  that  there  was  any  madness  in  the  world  consisting  in  "  a 
total  deprivation  of  memory  and  understanding." 

Epileptic  furor,  stuporous  insanity,  idiocy,  and  delirium  grave 
might  be  placed  in  that  category,  as  without  memory  or  under- 
standing; but  a  great  range  of  insanities,  in  which  criminal 
offenses  are  much  more  likely  to  be  committed,  is  left  out  of 
account  by  the  provision  that  memory  and  understanding  must 
be  absent. 

Delusion  as  a  test  of  insanity  was  proposed  by  Erskine,  and 
subsequently  he  secured  the  acquittal  of  a  young  woman  indicted 
for  murder  who  acted  without  delusion  upon  facts  which  created 
insane  jealousy.3 

The  delusion  test  of  irresponsible  insanity  was  sanctioned  by 
Sir  John  Nicholl.4  "  The  true  criterion,"  says  he,  "the  true  test, 
of  the  absence  or  presence  of  insanity,  I  take  to  be  the  absence 
or  presence  of  what,  used  in  a  certain  sense  of  it,  is  comprisable 
in  a  single  term,  namely,  'delusion.'  ...  In  short,  I  look 
upon  delusion  in  this  sense  of  it,  and  insanity,  to  be  almost,  if  not 
altogether,  convertible  terms.     .  .     On  the  contrarv,  in  the 

absence  of  any  such  delusion,  with  whatever  extravagances  a  sup- 
posed lunatic  may  be  justly  chargeable,  and  how  like  soever  to  a 
real  madman  he  may  either  think  or  act  on  some  one  or  on  all 

1  Art.  64.     Quoted  by  Ray,  op.  cit.  19. 
-  Des  Maladies  Mentales,  100. 

3  Erskine's  Speeches,  quoted  by  Ray,  op.  cit.  37. 

4  Dew  v.  Clark,  3  Add.  Eccl.  Rep.  79. 


DEFINITIONS.  15 

subjects,  still,  in  the  absence,  I  repeat,  of  anything  in  the  nature 
of  a  delusion,  so  understood  as  above,  the  supposed  lunatic  is,  in 
m7  judgment,  not  properly  or  essentially  insane." 

It  would  be  proper  enough,  as  in  the  instance  of  Com.  v. 
Rogers,1  in  Massachusetts,  1844,  to  make  delusion  an  accessory 
test,  but  not  the  sole  one.  In  that  case  it  was  decided  that 
"where  the  delusion  of  a  party  is  such  that  he  has  a  real  and  firm 
belief  of  the  existence  of  a  fact  which  is  wholly  imaginary,  and 
under  that  insane  belief  he  does  an  act  which  would  be  justifiable 
if  such  fact  existed,  he  is  not  responsible  for  such  act." 

In  Guiteau's  Case,2  in  1881,  an  insane  delusion  was  defined  as 
"  an  unreasoning  and  incorrigible  belief  in  the  existence  of  facts 
which  are  either  impossible  absolutely,  or  at  least  impossible 
under  the  circumstances  of  the  individual;"  and  it  was  said  that 
"  opinions  or  beliefs  founded  on  reasoning  and  reflection  are  not 
insane  delusions  nor  within  the  law  regarding  them."  3 

As  to  Sir  John  Nicholl's  idea  that  delusion  must  be  present  to 
constitute  insanity,  there  would  be  considerable  difficulty  in 
establishing  either  the  existence  or  the  absence  of  delusion 
in  many  insanities,  with  or  without  aggressive  acts,  such  as  epi- 
leptic, stuporous,  confusional,  or  atheromatous  insanities;  or  in 
imbecility  (particularly  the  sine  delirio  form  of  Spitzka,  or 
moral  imbecility);  in  transitory  frenzy,  delirium  grave,  or  the 
various  dementias,  such  as  are  caused  by  destructive  brain  disease. 
In  fact,  in  some  of  these  states,  where  stupor  and  impulsive  acts 
are  associated,  and  there  is  no  remembrance  of  what  has  been 
done,  it  is  mere  assumption  to  claim  that  delusion  instigated  the 
act,  because  the  latter  appears  to  have  been  so  induced. 

It  would  not  require  a  very  astute  lawyer,  particularly  if  he 
possessed  a  little  precise  knowledge  such  as  a  short  residence 
in  an  insane  asylum  would  furnish,  to  pull  such  definitions  to 
pieces.  The  Massachusetts  decision  is  probably  fair,  but  not  far- 
reaching  enough,  for  an  insane  delusion  may  lead  to  the  perpetra- 
tion of  acts  that  would  not  be  justified  by  the  existence  of  facts.  In 
the  Guiteau  Case,  the  definition  requires  "unreasoning  and  incorri- 

1  7  Met.  500,  41  Am.  Dec.  458;  Bennett  &  H.  Lead.  Cas.  Crim.  Law,  95. 

2  10  Fed.  Kep.  161. 
aFor  further  citations  as   to   delusions,  see  chap.   VII.,  II ,  ^  3    and 

iil)ap.  IX. 


It)  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

gible  belief  in  the  existence  of  facts  which  are  impossible  absolutely, 
or  impossible  under  the  circumstances  of  the  individual ; "  whereas 
a  delusion  may  be  founded  upon  insane  reasoning  which  may  be 
quite  as  logical  as  is  usual  among  average,  ordinary  persons,  and 
even  more  so  than  with  them ;  the  delusion  may  not  be  incorri- 
gible, for  it  may  assume  some  new  form  under  insane  reasoning  or 
the  persuasion  of  others ;  the  facts  may  not  be  impossible,  and 
frequently  they  may  actually  exist ;  the  entire  delusion  may  be  in 
the  interpretation  of  the  facts  ;  and  the  facts  may  be  not  impos- 
sible for  the  same  reason,  under  the  circumstances  of  the  individ- 
ual. The  conclusion  that  reasoning  and  reflection  are  not  factors 
in  insane  delusions  is  known  to  every  thoughtful  person  who  has 
observed  insane  reason  and  reflection  to  be  an  error.  It  often 
puzzles  asylum  officials  to  distinguish  them  from  sane  reason  and 
reflection ;  sometimes  the  same  patient  may  mix  both  kinds,  or  at 
times  show  more  of  one  kind  than  the  other. 

A  recent  definition1  holds  that  "  a  delusion  is  a  belief  in  facts 
the  existence  of  which  no  rational  person  would  believe.  Such 
delusion  in  order  to  be  a  test  of  insanity  must  be  a  delusion 
of  the  senses,  or  such  as  concern  facts.  Mere  beliefs  on  questions 
of  opinion,  however  absurd,  are  not  a  proper  test  where  a  person 
is  affected  with  a  delusion  upon  one  specific  subject  but  is  rational 
in  other  respects;  he  is  considered  insane  upon  that  subject,  but 
not  on  other  subjects." 

A  person  may  be  rational  and  overdraw  his  bank  account 
under  a  miscalculation,  but  nevertheless  he  is  under  a  delusion. 
Illusion  of  the  senses  leads  to  universal  delusions  ;  refraction 
causes  the  sun  to  appear  above  when  it  is  really  below  the 
horizon.  Instruction  causes  the  admission  of  the  rotundity  of  the 
earth  when  the  unaided  senses  impress  us  with  its  flatness ;  the 
uneducated  person  labors  under  the  delusion  that  the  earth  is  flat, 
and  yet  he  cannot  be  considered  irrational  because  of  his  want  of 
education.  Xo  rational  person  in  Aristotle's  time  would  believe 
that  the  earth  was  round,  and  that  philosopher,  after  a  few  state- 
ments as  to  the  plausibility  of  such  a  supposition,  dismisses  the 
matter  by  saying:  "But  reason  teaches  us  that  the  earth  is  fiat.v 
'What  a  rational  person  would  not  believe  in  one  period  may  be 

1  11  Am.  k  Eng.  Eric.  Law,  107,  103. 


DEFINITIONS. 


accepted  later  by  other  rational  persons.  And  in  fact  the  mere 
admission  of  the  globular  shape  of  the  earth  does  not  argue 
rationality,  for  the  vast  majority  merely  adopt  the  statement 
secondhand,  and  cannot  advance  a  single  reason  in  its  support. 
The  perspective  illusion  of  vanishing  lines  can  be  regarded  as  the 
basis  of  delusion.  A  delusion  upon  a  specific  subject  may  be 
compatible  with  sanity  or  with  insanity.  In  fact,' delusion  in 
itself  cannot  be  made  a  criterion  of  insanity.  Circumstances  may 
make  a  sane  delusion  an  insane  one,  or  the  reverse.  The  delusion 
may  assist  in  the  determination  of  insanity,  but  no  hard  and  fast 
lines  of  any  definition  can  contain  all  insane  as  distinguished  from 
sane  delusions. 

Wharton1  cites  the  instance  of  the  Mormon  prophets  who  were  in- 
fluenced by  delusions  respecting  their  revelations,  and  claims  that 
the  sanity  of  the  Mormons  shows  that  the  delusion  is  not  an  in- 
sane one ;  and  this  strikes  at  the  root  of  the  entire  matter.  The 
only  difference  possible  to  establish  between  sane  and  insane  de- 
lusions, in  a  general  way,  is  that  in  one  case  the  delusion  is 
entertained  by  an  insane  person,  and  in  the  other  case  by  a  sane 
one;  and  the  delusion  must  be  established  as  insane  by  proof 
of  the  insanity  of  the  person,  irrespective  of  the  delusion.  A 
"sane  delusion"  may  be  held  by  an  insane  patient,  and  what 
could  be,  at  times,  considered  insane  delusions,  may  also  be  enter- 
tained by  rational  persons.  At  one  time  the  belief  in  witches 
rested  upon  the  very  best  of  human  testimony ;  at  this  time  such 
a  belief  would  raise  a  question  of  sanity  in  its  entertainer,  though 
quite  as  absurd  things  are  held  to  be  true  by  people  wlmse 
rationality  in  general  is  never  questioned. 

So,  instead  of  proving  the  insanity  by  the  delusion,  Judge 
Wharton  seeks  to  prove  the  insanity  of  the  delusion  by  the  insan- 
ity, casting  out  erroneous  beliefs  held  by  the  sane  persons,  how- 
ever delusional  they  may  appear,  because  such  persons  are'  sane. 

Thus,  jurists  may  delude  themselves  that  an  effect  proves  the 
cause,  in  taking  a  symptom,  such  as  a  delusion,  as  a  test  of  insan- 
ity, just  as  a  cough  could  be  claimed  to  prove  consumption; 
whether  or  not  insanity  in  the  one  case,  or  consumption  in  the 
other,  could   be  maintained  by  other  proof.     If  the  law  holds 

1  Criminal  Law,  8th  ed.  81,  etc. 

2 


IS  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

that  the  cough  is  the  sole  criterion  of  consumption,  then  pathol- 
ogy should  leg-ally  have  nothing  more  to  say  on  the  subject 
But  the  law  might  discriminate  between  coughs  in  general  and 
consumptive  coughs,  or.  in  other  words,  coughs  peculiar  to  con- 
sumption. As  the  only  effectual  way  to  ascertain  whether  the 
cough  were  really  consumptive  or  not  would  be  to  find  whether 
consumption  actually  existed,  thus  an  insane  delusion  may  be 
known  by  the  insanity  of  the  person  who  entertained  it;  and 
as  a  consumptive  may  have  some  other  kind  of  a  cough,  so  an 
insane  person  may  hold  a  sane  delusion. 

The  Right  and  Wrong  Test  is  generally  accepted  in  the 
United  States.  It  consists  in  the  inability  to  distinguish  between 
right  and  wrong  as  to  the  act  charged  as  a  crime.  In  some 
states  it  is  the  exclusive  test  of  such  insanity  as  exempts  from  re- 
sponsibility. 

Many  of  the  inconsistent  maxims  in  English  law  pertaining  to 
insanity  may  have  arisen  from  the  fact  that,  except  in  trials  for 
high  treason,  the  accused  was  not  allowed  counsel  to  speak  in  his 
defense ;  so  that  ancient  dicta  were  repeated  without  question, 
and  have  influenced  all  succeeding  English  and  American  de- 
cisions. 

"Whenever  during  the  "night  of  time"  the  right  and  wrong 
test  may  have  been  first  announced,  it  was  alternately  ignored 
and  reinstated ;  abandoned  in  the  case  of  Hadfield  ;  reaffirmed  in 
that  of  Bellingham  ;  again  lost  sight  of  in  the  trial  of  Jonathan 
Martin;1  and  modified  by  Lord  Lyndhurst2  in  directing  that  the 
prisoner  be  acquitted  if  "  he  did  not  know,  when  he  committed 
the  act,  what  the  effect  of  it.  if  fatal,  would  be  with  reference  to 
the  crime  of  murder;''  and  in  1837  Mr.  Justice  Park3  held  that 
"  sufficient  knowledge  to  discriminate  between  right  and  wrong" 
was  the  proper  construction.  Three  years  later,  in  Beg.  v.  Ox- 
ford, Lord  Chief  Justice  Denman4  made  the  question  read 
"  whether  the  prisoner  was  laboring  under  that  species  of  insan- 
ity which  satisfies  you  [the  jury]  that  he  was  quite  unaware  of 
the  nature,  character,  and  consequences  of  the  act  he  was  com- 

1  York  Minster  Arson  Case. 

Rex  t.  Offord,  5  Car.  &  P.  16S. 
s  Trial  of  Greensniitb,  Ray,  op.  eit.  42. 
4  0  Car.  &  P.  525. 


DEFINITIONS.  19 

mitting,  or,  in  other  words,  whether  he  was  under  the  influence 
of  a  diseased  mind,  and  was  really  unconscious,  at  the  time  of 
committing  the  act,  that  it  was  a  crime." 

McNaughton,  in  London,  in  1843,  killed  Drummond,  the  pri- 
vate secretary  of  Sir  Robert  Peel.  It  was  proved  that  .Mc- 
Nanghton  suffered  from  delusions  of  persecution,  though  behav- 
ing himself  with  propriety  generally,  and  not  exhibiting  very 
obvious  insanity.  In  deference  to  the  popular  clamor  the  House 
of  Lords  propounded  to  the  Judiciary  certain  questions  relative 
to  the  laws  of  England  on  the  subject  of  insanity  as  a  defense  in 
criminal  actions.  The  delusional  test  was  doubted  as  a  proper 
exculpatory  plea. 

In  answer  to  the  first  query  the  judges  replied  to  the  effect 
that  though  an  act  was  the  product  of  an  insane  delusion,  if  the 
person  knew  that  he  was  acting  contrary  to  the  law  he  is  never- 
theless punishable. 

To  the  second  and  third  questions  the  response  was  that.  "  to 
establish  a  defense  on  the  grounds  of  insanity  it  must  be  clearly 
proved  that  at  the  time  of  committing  the  act  the  party  accused 
was  laboring  under  such  defect  of  reason,  from  disease  of  the 
mind,  as  not  to  know  the  nature  and  quality  of  the  act  he  was 
doing,  or,  if  he  did  know  it,  that  he  did  not  know  he  was  doing 
what  was  wrong  with  reference  to  the  particular  act  with  which 
he  is  charged." 

The  reply  to  the  fourth  question  was  on  the  assumption  "  that 
if  he  labors  under  partial  delusion  only,  and  is  not  in  other  respects 
insane,  he  must  be  considered  in  the  same  situation  as  to  responsi- 
bility as  if  the  facts  with  respect  to  which  the  delusion  exists 
were  real.  For  example,  if,  under  the  influence  of  delusion,  he 
supposed  another  man  to  be  in  the  act  of  attempting  to  take 
away  his  life,  and  he  killed  the  man,  as  he  supposes  in  self-de- 
fense, he  would  be  exempt  from  punishment.  If  his  delusion 
was  that  the  deceased  had  inflicted  a  serious  injury  to  his  char- 
acter and  fortune,  and  he  killed  him  in  revenge  for  his  supposed 
injury,  he  would  be  liable  to  punishment." 

Great  ignorance  of  the  nature  of  insanity  is  displayed  in  these 
answers,  which  seem  to  have  been  constructed  with  special  refer- 
ence to  the  popular  wishes  in  the  particular  instance  of  Mc- 
Naugh ton's  offense. 


20  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

Insanity  is  the  result  of  disease,  and  those  who  make  a  life 
work  of  studying  it  are  more  competent  to  pass  upon  associated 
matters  than  others  who  have  not  done  so,  or  who  have  come  in 
contact  with  one  phase  of  it  only,  as  the  undertaker  sees  the 
final  result  of  sickness  in  some  cases,  without  claiming  to  be  a 
physician. 

Transferring  the  same  misapplied  general  ability  of  the  judges 
to  other  questions  of  pathology  of  which  they  were  just  as  igno- 
rant, we  could  suppose  a  case : 

The  loud  coughing  of  a  hospital  patient  disturbs  the  repose  of 
his  fellows,  and  various  opinions  are  advanced,  to  the  effect  that 
he  could  restrain  the  nuisance ;  that  he  is  not  consumptive,  and 
therefore  he  has  no  right  to  cough.  The  desire  is  general  for 
his  removal,  but  a  pretext  must  be  found  in  order  to  hold  him  re- 
sponsible for  voluntarily  annoying  others.  Instead  of  seeking  the 
advice  of  physicians  concerning  the  matter,  the  president  and 
board  of  directors  summon  the  warden  and  trustees,  who  are 
intelligent  laymen  desirous  of  pleasing  both  the  higher  authori- 
ties and  the  hospital  inmates,  and  propound  questions  implying  a 
doubt  that  cough  alone  would  justify  annoying  others,  and  sug- 
gesting that  probably  some  other  symptom  should  be  associated 
with  the  cough  to  make  it  the  irresponsible  one  of  phthisis ;  they 
therefore  wish  a  thorough,  but  sententious,  expression  con- 
cerning coughs  in  general  and  that  of  pulmonary  consumption 
in  particular. 

The  answers  made  are  that,  assuming  the  inquiry  to  be  confined 
to  those  persons  who  labor  under  "  partial "  coughs  only,  and 
are  not  in  other  respects  consumptives,  then,  notwithstanding  he 
could  not  help  coughing,  if  he  knew  at  the  time  he  was  violating 
hospital  rules  he  should  be  held  responsible.  Further,  that  to  be 
exculpated  on  the  grounds  of  consumption,  it  must  be  clearly 
proved  that  at  the  time  of  coughing  the  party  was  laboring 
under  such  defect  of  the  respiratory  apparatus  as  to  be  unaware 
that  he  was  coughing  or  that  he  was  doing  wrong. 

To  the  last  question  :  If  any  person,  under  a  consumptive  im- 
pulse, coughs  disagreeably  to  others  in  consequence  thereof,  is 
he  excused?  —  the  reply  is,  assuming  that  he  labors  under 
"  partial "  cough  only,  and  is  not  in  other  respects  consumptive, 
he  must  be  considered  in  the  same  situation  as  to  responsibility 


DEFINITIONS.  21 


as  if  there  were  real  occasion  for  the  cough.  For  example,  one 
who  coughed  when  he  was  frightened  and  merely  imagined  that 
he  had  occasion  for  the  fright  would  be  exempt  from  punish- 
ment, but  if  he  merely  imagined  that  he  was  about  to  be  fright- 
ened, or  put  to  some  lesser  inconvenience,  then  he  would  be  liable 
to  punishment  for  coughing,  whether  he  were  consumptive  or 
not. 

As  puerile  as  the  comparison  sounds,  it  is  scarcely  overstrain  eel- 
According  to  the  judges'  replies,  the  insane  man  must  act  rea- 
sonably ;  he  must  obey  impulses  of  delusions  only  under  certain 
circumstances  common  to  sane  persons, — as  though  the  presence 
of  the  insane  delusion  were  not  likely  to  be  accompanied  with 
other  faults  of  mentality. 

As  Ray1  says :  "  This  is  virtually  saying  to  a  man  :  You  are 
allowed  to  be  insane ;  the  disease  is  a  visitation  of  Providence, 
and  you  cannot  help  it :  but  have  a  care  how  you  manifest 
your  insanity ;  there  must  be  method  in  your  madness.  Having 
once  adopted  your  delusion  all  the  subsequent  steps  connected 
with  it  must  conform  to  the  strictest  requirements  of  reason  and 
propriety.  If  you  are  caught  tripping  in  your  logic ;  if  in  the 
disturbance  of  your  moral  and  intellectual  perceptions  you  take  a 
step  for  which  a  sane  man  would  be  punished,  insanity  will  be  no 
bar  to  your  punishment.  In  short,  having  become  fairly  envel- 
oped in  the  clouds  of  mental  disorder,  the  law  expects  you  will 
move  as  discreetly  and  circumspectly  as  if  the  undimmed  light  of 
reason  were  shining  upon  your  path." 

The  relativity  of  right  and  wrong;  the  fact  that 'what  may  be 
wrong  under  certain  circumstances  may  be  right  under  others ; 
the  question  of  fas  et  oiefas  of  the  ages ;  the  question  of 
Pontius  Pilate  on  the  arraignment  of  Christ ;  the  inability  to 
establish  any  universal  standard  of  abstract  right  and  wrong, 
— questions  over  which  pundits  and  sages,  from  the  earliest  times, 
have  puzzled, — are  presumed  to  have  been  solved  by  the  insane 
person  who  commits  a  crime.  A  paranoiac  may  know  right 
from  wrong,  even  as  to  the  particular  crime  he  commits,  and  he 
may  also  have  the  power  to  choose  between  the  right  and  wrong 
as  generally  understood,  and  may  not  be  irresistibly  or  impulsively 

1  Op.  cit.  p.  47,  g  31. 


22  MEDICAL    JUKISPKUDENCE    OF    INSANITY. 

controlled  :  but  his  will  power  and  his  reason  are  as  insane  as  the 
other  faculties  of  his  mind,  and  he  maj  be,  and  often  is,  influ- 
enced by  what  he  considers  higher  ideas  of  right  and  wrong. 
The  ideas  of  right  and  wrong  prevalent  in  Lord  Bacon's  day 
condemned  Bishop  Cranmer  to  the  stake,  and  enthusiastic  mar- 
tyrs of  all  sects  could  have  no  greater  conviction  of  the  injustice 
of  their  persecutors  than  has  the  ordinary  paranoiac.  If  the 
knowledge  of  right  and  wrong  were  such  a  simple  thing,  or  in- 
tuitive, there  would  be  no  need  of  instruction  for  the  young,  or 
of  legislation  to  adjust  the  ever  shifting  conceptions  of  the  sub- 
ject. Lord  Lyndhurst,1  in  the  debate  in  the  House  of  Lords  occa- 
sioned by  the  McNaughton  trial,  remarked,  inconsistently  with 
his  other  expressed  opinions,  that  sane  persons  differ  in  their 
views  of  right  and  wrong,  and.  though  he  knew  what  the  learned 
judges  meant  by  right  and  wrong,  he  was  not  sure  that  the  public 
at  large  did,  especially  juries.  As  to  the  means  by  which  it  may 
be  inferred  that  an  insane  person  knows  right  from  wrong  it 
was  declared  by  the  attorney  general  in  the  trial  of  Bellingham2 
that,  "  even  if  insanity  in  all  his  other  acts  had  been,  manifest, 
yet  in  the  systematic  correctness  with  which  the  prisoner  con- 
trived the  murder  he  showed  that  he  possessed  a  mind  at  the 
time  capable  of  distinguishing  right  from  wrong."  Design,  cun- 
ning, careful  preparation,  and  execution  of  plans  are  common 
exhibitions  of  insanity;  delusions  may  be  hidden  or  denied; 
dissimulation  and  simulation  are  resorted  to,  to  carry  out  suicidal 
or  other  plans  ;  and  inventive  genius  may  not  only  exist,  but  be 
increased  by  insanity,  and  practical  machinery  has  been  perfected 
bv  lunatics,  apart  from  or  in  connection  with  insane  motives. 
In  the  Guiteau  Case  it  was  remarked  in  the  charge  to  the  jury 
that  "indifference  to  what  is  right  is  not  ignorance  of  it,  and  de- 
pravity is  not  insanity."  It  can  be  contended,  also,  that  indiffer- 
ence to  the  right  and  depravity  are  not  generally  indications  of 
sanity.  In  fact  the  very  things  that  are  most  frequently  observed 
among  the  insane  are  urged  'as  proof  that  they  are  not  insane. 
Originally  the  test  consisted  in  knowledge  of  right  and  wrong 
in  the  abstract,  as  stated  in  Judge  Mansfield's  charge  in  the  Bell- 

1  Hansard,  Parliamentary  Debates,  G7,  71-1 

2  Ray,  op.  cit.  31 


DEFINITIONS.  ^U 

ingham  Case,*  but  in  Rex  v.  Offord"  and  Reg.  v.  Oxford?  and 
finally  in  the  joint  answer  of  the  judges  growing  out  of  the  Mo- 
Naughton  Case,  the  test  became  the  knowledge  of  right  and 
wrong  as  applied  to  the  particular  case,  which  latter  has  found 
more  general  favor  in  the  American  courts  than  the  "child  test," 
"wild  beast  test,"  "  or  abstract  right  and  wrong  test."  In  Erwin 
v.  State1  it  was  held  that  a  charge  which  makes  the  test  of  in- 
sanity depend  upon  whether  the  prisoner  knew  right  from  wrong 
generally,  instead  of  with  respect  to  the  act  for  which  he  is  in- 
dicted, is  erroneous. 

A  decision  that  would  be  liable  to  involve  a  contradiction  was 
reached  in  Roberts  v.  State,"  that  if  a  man  has  not  reason  sufficient 
to  enable  him  to  distinguish  between  right  and  wrong  in  relation 
to  the  particular  act,  he  is  not  punishable.  Nor  is  he  punishable 
where,  in  consequence  of  some  delusion,  the  will  is  overmastered 
and  there  is  no  criminal  intent. 

For  an  insane  person  may  know  right  from  wrong,  as  ordi- 
narily understood,  and  be  held  accountable,  under  the  first  clause 
of  the  decision,  and  be  exculpated  under  the  last  provision  of 
the  opinion. 

Another  modification  of  the  particular  right  and  wrong  test 
appears  clearly  stated  in  Smith  v.  Com.?  in  the  words :  "  The 
test  of  responsibility  is  whether  the  accused  had  sufficient  reason 
to  know  right  from  wrong,  and  whether  or  not  he  had  sufficient 
power  of  control  to  govern  his  actions." 

In'Wright  v.  People?  "  uncontrollable  impulse,"  and  in  State  v. 
Johnson?  "  irresistible  impulse,"  are  added  to  the  "  particular  right 
and  wrong  test."  With  a  return  to  the  "  abstract  right  and  wrong- 
test,"  the  New  York  supreme  court  adds:  "If  he  had  sufficient 
power  to  know  it,  whether  he  had  sufficient  power  to  govern  his 
actions  is  a  matter  of  no  moment  whatever." 9     Dr.  Spitzka  tes- 

1  1  Collinson,  Lunacy,  630. 

2(183i)  5  Car.  &  P.  169. 

3  (1840)  9  Car.  &  P.  525. 

4 10  Tex.  App.  700. 

53Ga.  310. 

6 1  Duv.'  (Ky.)  224. 

1  4  Neb.  407. 

8  40  Conn.  130. 

'Walker  v.  People,  26  Hun.  G7,  1  N.  T.  Crim.  Rep.  7. 


24  MEDICAL    JUKISPliUDENUE    OF    INSANITY. 

tified  that  the  prisoner  in  this  case  was  shamming,  and  was  sane- 
and  on  the  trial  conviction  followed  from  inability  to  prove  in; 
sanity.  The  same  case  came  before  the  New  York  court  of 
appeals  the  succeeding  year,  and  the  judgment  was  affirmed. 
In  his  charge  the  recorder  refused  to  add  to  the  right  and  wrong 
proposition  the  further  one,  ''and  whether  or  no  he  (the  accused) 
had  sufficient  power  of  control  to  govern  his  actions."  Held, 
that  the  refusal  was  proper,  as  the  recorder  had  charged  that  the 
accused  must  have  sufficient  control  of  his  mental  faculties  to 
form  criminal  intent  before  he  can  be  held  responsible  for  a 
criminal  act,  which  is  as  far  as  the  court  should  go  on  the  subject 
of  control. 

While  there  is  no  doubt  of  the  justice  of  the  sentencing  of  the 
prisoner  for  abducting  the  children,  some  parts  of  the  decision 
would  condemn  insane  persons  for  irresponsible  acts.  Obsessed 
persons,  those  who  have  irresistible  homicidal,  suicidal,  and  other 
impulses,  may  know  right  from  wrong,  and  strive  earnestly  to 
control  themselves  properly,  but  are  absolutely  unable  to  do  so. 
Then,  again,  the  criminal  intent  may  be  formed  by  an  insane 
person,  and  there  may  be  sufficient  control  of  the  mental  faculties 
to  form  that  intent ;  but  such  facts  would  by  no  means  indicate 
to  the  alienist  that  the  person  was  sane. 

That  there  is  no  test  of  insanity,  that  every  case  must  be  con- 
sidered by  itself,  and  the  insane  person  must  be  compared  with 
his  former  self,  was  essentially  the  revolutionary  decision  of  Mr. 
Justice  Doe,  in  State  v.  Pike;1  and  the  following  year  the  supreme 
court  of  New  Hampshire  again  decided  that  there  was  no  legal 
test  of  insanity. 

In  the  first  case  referred  to,  Justice  Doe  stated  that  "  this  is  the 
first  instauce  in  which  such  instructions  were  ever  given ;  but 
they  are  an  application  of  ancient  and  fundamental  principles  of 
the  common  law.  A  product  of  mental  disease  is  not  a  contract, 
a  will,  or  a  crime,  and  the  tests  of  mental  disease  are  matters  of 
fact? 

Justice  Doe2  had  previously,  in  a  civil  case,  held  to  the  same 
effect.     "  Tried  by  the  standard  of  legal  precedent,"  he  said,  "the 

1  (1870)  49  N.  H.  399,  6  Am.  Rep.  533. 

2  Boardman  v.  Woodman,  47  N.  H.  147-150. 


DEFINITIONS.  25 

instructions  are  wrong;  tried  hy  the  standard  of  legal  principh  ■, 
they  are  right." 

In  the  case  of  State  v.  Jones,1  referred  to,  on  the  trial  of  the 
indictment  for  murder  the  jury  were  instructed  "  that  if  the  de* 
fendant  killed  his  wife  in  a  manner  that  would  be  criminal  and 
unlawful  if  the  defendant  was  sane,  the  verdict  should  he  '  not 
guilty  by  reason  of  insanity,'  if  the  killing  was  the  offspring  or 
product  of  mental  disease  in  the  defendant."     Held,  correct. 

In  these  cases  the  supreme  court  of  New  Hampshire  discarded 
all  tests  of  insanity  adopted  by  other  courts  as  rules  of  law,  and 
held  that  insanity  is  a  mental  disease  ;-that  whether  the  defendant 
had  a  mental  disease,  and  whether  the  act  charged  as  crime  was 
the  product  of  such  disease,  are  the  decisive  questions,  and  they 
are  questions  of  fact  for  the  jury.  Accordingly  the  same  court 
holds  that  it  is  not  competent  for  a  witness  who  is  not  an  expert 
to  give  his  opinion  as  to  the  sanity  of  the  defendant. 

In  an  opinion  concerning  the  right  and  wrong  test  the  supreme 
court  of  Indiana,  in  Stevens  v.  State.2  refers  to  Chief  Justice 
Perley's  charge  in  State  v.  Pike  as  the  true  law  on  the  subject, 
and  decides,  in  effect,  that  there  is  no  legal  test  of  insanity.  If 
an  insane  impulse  leads  to  the  commission  of  a  crime,  the  actor 
is  not  responsible.  An  instruction  that  if  the  jury  believe  "  that 
the  defendant  knew  the  difference  between  right  and  wrong  in 
respect  to  the  act  in  question,  if  he  was  conscious  that  such  act 
was  one  which  he  ought  not  to  do,"  he  was  responsible  for  his 
act,  is  erroneous.  Also  upon  an  indictment  for  murder  where 
the  defense  is  insanity  the  jury  should  acquit  if  they  entertain  a 
reasonable  doubt  as  to  the  soundness  of  mind  of  the  prisoner  at 
the  time  of  the  homicide,  although  they  believe  he  had  judgment 
and  reason  sufficient  to  discriminate  between  right  and  wrong  in 
the  ordinary  affairs  of  life.  He  is  as  much  entitled  to  the  benefit 
of  a  doubt  on  that  as  on  any  other  material  fact  in  the  case. 

In  IIopps  v.  People*  it  was  held  that  "wherever  it  shall 
appear  from  the  evidence  that  at  the  time  of  doing  the  act  charged 
the  prisoner  was  .  .  .  affected  with  insanity,  and  such  affec- 
tion was  the  efficient  cause  of  the  act,  and  that  he  would  not  have 

1 50  N.  H.  369,  9  Am.  Eep.  242. 

2  31  Ind.  485,  99  Am.  Dec.  634. 

3  (1863)  31  IU.  385,  83  Am.  Dec.  231. 


26  MEDICAL-  JURISPRUDENCE    OF    INSANITY. 

done  the  act  but  for  that  affection,  he  ought  to  be  acquitted." 
This  antedated  the  New  Hampshire  decision  by  several  years, 
though  it  lias  but  little  influence  upon  Illinois  practice,  for  the 
"  particular  right  and  wrong  test,"  with  the  added  proviso  that 
there  was  sufficient  ability  to  control  actions,  is  invariably  applied 
in  criminal  cases  in  that  state  where  insanity  is  the  defense. 

The  New  Hampshire  decision  referred  to  as  a  decided  advance 
in  conceptions  of  insanity  tests  is  reported  in  full  in  chapter  YIL, 
L,  appendix  to  §  8.' 

1  For  further  tests  as  adopted  by  courts,  see  chap.  VII.,  L 


CHAPTER   III. 

CLASSIFICATION. 

Mania  was  synonymous  with  insanity,  originally  and  until  1021, 
when  Burton's  Anatomy  of  Melancholy  induced  a  popular 
division  of  mental  disease  into  states  of  exaltation  and  depression, 
which  primitive  separation  appeals  so  forcibly  to  uneducated 
"  common  sense  "  that  educated  common  sense,  as  Huxley  calls 
science,  has  had  difficulty  in  overcoming  its  allurements.  Exalta- 
tion and  depression  cannot  possibly  describe  insanities  which 
may  change  from  the  one  to  the  other  condition,  or  which  cannot 
be  included  under  either  term.  "  Lunacy  "  appeared  when  the 
announcement  was  made  that  the  moon  was  associated  with  some 
forms  of  insanity.  Gall  and  Spurzheim,  followed  by  Connolly 
and  W.  A.  E.  Brown,  attempted  a  phrenological  classification 
based  upon  the  assumption  that  the  mind  was  divisible  into  cer- 
tain faculties  which  influenced  behavior  ;  but,  though  so  thoughtful 
a  writer  as  Isaac  Kay  was  somewhat  attracted  to  the  claims  of 
phrenology,  recent  alienists  can  find  nothing  in  it  of  use  in  con- 
nection with  mental  studies.  Its  originators  were,  however,  ad- 
vanced in  knowledge  beyond  their  time,  and  I  have  suggested' 
that  the  few  ideas  of  value  evolved  by  them  should  be  considered 
in  connection  with  modern  brain  studies. 

Parchappe  suggested  a  division  of  insanities  according  to  the 
diseased  states  which  induced  them,  and  though  August  Voisin, 
fifty  years  later,  attempted  a  similar  pathological  classification, 
not  enough  is  known  as  to  the  pathology  of  insanity  to  justify  a 
nomenclature  exclusively  founded  on  diseased  states.  There  is 
justification  for  a  partial  pathological  classification  based  on  a  few 
organic  and  toxic  disorders  with  the  atheromatous  insanity  which 
Voisin  announced.  Laycock  divided  insanities  into  disturbances 
of  certain  assumed  physiological  divisions  of  the  mind. 

Pinel,  Esquirol,  and  Cullen  improved  the  classification  materi- 

1  "  Ccrebrology  and  Phrenology,"  American  Naturalist,  July,  1888; 
"Bruin  Centers,"  American  Naturalist,  Sept.,  1892. 

27 


28  MEDICAL   JURIS PJKTJDENCE    OF    INSANITY. 

ally  by  adopting  symptoms  as  points  of  departure,  but  even  this 
symptomatological  classification  is  insufficient  and  erroneous. 

Heinroth,  Ideler,  and  Hoffbauer  analyzed  the  mind  as  consist- 
ing of  intellectual  faculties,  moral  dispositions,  and  the  will, 
which  latter  included  the  propensities ;  and  their  list  of  mental 
diseases  had  reference  to  disorders  of  such  divisions  of  the  mind. 
Their  school  was  known  as  the  psychological.  In  1830  Max 
Jacobi,  and  later  his  followers,  Xasse  and  Friedreich,  classified 
insanities  according  to  the  part  of  the  body  affected,  but  naturally 
failed  to  establish  their  theories.  The  etiological  or  causative 
classification  was  originated  by  Belhomme,  in  1834,  and  Schrceder 
van  der  Kolk,  in  1852 ;  which  method  has  been  somewhat  fol- 
lowed by  Skae  and  Clouston. 

Bucknill  combined  a  mental  and  pathological  enumeration. 
Since  Spitzka's  advocacy  of  a  mixed  practical  classification,  in 
1883,  the  Antwerp  Congress  of  Mental  Medicine  in  1885,  and  the 
alienists  of  Great  Britain,  have  followed  a  composite  system  made 
up  of  symptoms,  pathological  and  etiological  indications. 

Spitzka's  method1  was  to  group  all  insanities  into  the  "pure" 
and  "  complicating."  The  first  of  these  he  subdivided  into  sim- 
ple insanities  which  were  not  essentially  the  manifestation  of  a 
constitutional  neurotic  condition ;  these  were  classed  as  they  were 
or  were  not  associated  with  demonstrable  active  organic  changes 
of  the  brain.  His  second  sub-group  was  made  up  of  the  consti- 
tutional insanities  essentially  the  expression  of  a  continuous  neu- 
rotic condition,  classed  according  to  their  dependence  upon  or 
independence  of  the  great  neuroses. 

Under  these  headings  were  gathered  into  one  series :  simple 
mania,  simple  melancholia,  katatonia,  transitory  frenzy,  stu- 
porous insanity,  primary  confusional  insanity,  primary  deteri- 
oration (atheromatous  insanity),  secondary  confusional  insanity 
(an  early  stage  of  terminal  dementia),  terminal  dementia ;  into  an- 
other series  fall  senile  dementia  and  hebephrenia;  still  another 
embraces  paretic  dementia,  syphilitic  dementia,  dementia  from 
coarse  brain  disease,  and  delirium  grave.  Then  alcoholic,  hysteri- 
cal, and  epileptic  insanities  are  placed  together.  Periodical  in- 
sanity, idiocy,  imbecility,  cretinism,  and  paranoia,  finally  include 

1  Manual  of  Insanity,  126. 


CLASSIFICATION.  20 

tlio  remainder,  with  the  exception  of  "complicating  insanities," 
in  which  are  traumatic,  choreic,  post-febrile,  rheumatic,  gouty, 
phthisical,  sympathetic,  and  pellagrous  insanities. 

Utility  should  govern  the  construction  of  the  classification  ; 
and,  while  recognizing  the  impossibility  of  creating  any  unassail- 
able fabric  of  the  kind,  the  different  mental  ailments  are  separated 
in  this  work  under  chapter  headings  comprising  such  a  rational 
and  natural  system  as  I  thought  would  best  meet  the  require- 
ments of  both  the  legal  and  medical  professions : 

Alcoholism :  acute  alcoholism ;  chronic  alcoholism  ;  post  al- 
coholic conditions;  delirium  tremens;  alcoholic  trance;  dipso- 
mania; oinomania;  alcoholic  paretic  dementia ;  chronic  alcoholic 
insanity ;  alcoholic  dementia. 

Morphinism,  and  Allied  Addictions:  insanities  due  to  the 
addictions. 

Head  Injuries:  traumatic  insanity;  traumatic  dementia; 
traumatic  imbecility  ;  traumatic  paretic  dementia. 

Degeneracy:  cerebral  neurasthenia  (including  obsessions); 
paranoia ;  idiocy  ;  imbecility. 

Age:  senility;  senile  dementia;  the  climacteric;  climacteric 
insanity;  puberty;  masturbatory  insanity ;  hebephrenia. 

Vesanias :  delirium  ;  mania ;  hypochondriasis  ;  melancholia  ; 
post-febrile  insanity  ;  stuporous  insanity ;  conf usional  insanity  • 
transitory  frenzy. 

Childbirth:  pregnancy;  puerperal  insanity;  lactational  in- 
sanity. 

Periodicity:  periodical  insanity;  periodical  mania;  period- 
ical melancholia;  katatonia;  circular  insanity. 

Epilepsy :  mental  epilepsy  ;  epileptic  insanity. 

Hysteria :  mental  hysteria  ;  hysterical  insanity. 

Phthisis :  phthisical  insanity. 

Rheumatism  and  Gout:    rheumatic  insanit}';  gouty  insanity. 

Destructive  Brain  Disease:  organic  brain  disease;  athe- 
romatous insanity;  delirium  grave;  syphilitic  paretic  dementia; 
syphilitic  dementia ;  paretic  dementia;  terminal  dementia. 

Etiology,  pathology  and  symptoms,  indifferently,  contribute  to 
such  a  classification ;  with  the  advantage  of  some  readiness  of 
reference,  and  avoidance  of  the  obscurity  which  attends  a  more 
labored  grouping. 


30  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

'No  form  of  insanity  can  be  rigidly  classed  with  other  forms 
having  some  characteristics  in  common,  for  it  will  be  found  that 
such  special  disorder  also  contains  peculiarities  that  would  allow 
it  to  be  associated  with  other  forms  of  insanity,  and  different 
stages  of  a  disease  would  require  change  from  one  type  to  another. 
What  may  be  functional  at  one  stage  may  later  become  organic. 
A  noticeable  difficulty  is  illustrated  by  the  fact  that  under  "  head 
injury,"  a  special  insanity  called  traumatic  can  be  singled  out  as 
particularly  falling  under  that  heading,  while  numerous  other 
insanities  caused  by  head  injuries  must  be  mentioned  in  connec- 
tion with  that  topic,  which  are  referred  to  also  under  other  divi- 
sions. But  any  and  every  endeavor  to  make  a  complete  classi- 
fication will  be  baffled  by  inherent  obstacles,  and  the  only  excuse 
offered  for  the  classification  adopted  is  that  it,  at  least,  reduces, 
to  some  extent,  the  confusion  and  obscurity  that  often  unnec- 
essarily envelop  the  subject.1 

1  The  law  does  not  recognize  the  division  of  insanity  into  numerous  varie- 
ties, though  convenient  for  jDurposes  of  description,  insanity  in  the  legal 
cense  embracing  all  grades  and  conditions,  being  synonymous  with 
unsoundness  of  inind.     St.  George  v.  Biddeford,  76  Me.  593. 


CHAPTER  IV. 
SYMPTOMS. 

The  symptoms  of  insanity  are  best  studied  in  an  asylum  under 
physicians  experienced  in  both  mental  and  bodily  diseases,  and 
with  the  aid  of  the  recorded  observations  of  specialists  who  have 
written  during  the  past  two  centuries. 

Nearly  all  the  patients  of  such  an  institution  may  at  one 
time  be  seen  walking-  about  the  grounds,  or  seated  in  groups 
upon  the  lawn ;  and  they  could  be  readily  mistaken  for  the  pa- 
tients of  an  ordinary  hospital.  Apathy  and  a  general  appearance 
of  debility  prevail  among  them,  with  here  and  there  a  little 
restlessness. 

In  some  asylums  two  thirds  of  the  inmates  may  be  employed 
at  some  kind  of  work ;  a  few  are  as  efficient  as  workmen  are 
elsewhere,  while  many  can  do  but  little  towards  the  mainte- 
nance of  the  place  ;  but  were  it  not  for  the  fact  that  the 
majority  of  the  insane  are  able  to  do  work  of  some  kind  the  ex- 
pense of  keeping  up  such  colonies  would  be  very  much  greater 
than  it  is  at  present.  Probably  it  would  be  fair  to  estimate  the 
work  of  the  insane  at  one  fourth  that  of  the  efficiency  of  the 
sane ;  or,  as  it  is  often  stated,  it  takes  about  four  patients  to  do 
what  one  sane  person  can  do. 

Routine  work  alone,  as  a  rule,  is  possible  to  people  who  lack 
so  much  mental  initiative ;  and  there  is  a  constant  necessity  of 
overseeing  what  is  done  by  them,  owing  to  their  inattention, 
rather  than  to  their  physical  weakness. 

Female  patients  may  be  seen  quietly  at  work  in  the  asylum 
sewing  room  ;  in  the  laundry  the  stronger  women  are  employed  ; 
and  here  and  there  are  occasional  maniacal  demonstrations,  owing 
to  the  superabundant  energy  of  such  patients,  which  causes  them 
to  be  selected  for  laundry  work.  In  the  asylum  printing  office 
compositors  are  calmly  setting  type,  reading  proof,  and  making  up 
forms  ;  pressmen  are  operating  hand,  foot,  and  steam  presses ;  in 
the  various  factories  of  the  place  cabinetmaking,  coopering,  and 
skilled  work  of  various  other  kinds,  in  cloths,  leather,  metal,  or 

31 


32  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

wood  may  be  carried  on.  Insane  clerks  assist  in  the  bookkeeping 
of  the  establishment ;  patients  assist  in  the  cooking,  housework, 
painting,  and  repairing  generally.  Patients  help  at  the  stables 
and  in  the  care  of  the  stock  ;  even  landscape  gardening  and  much 
other  artistic  work  are  occasionally  performed  by  them.  In 
short,  nearly  everything  that  patients  may  have  previously 
learned,  either  before  or  after  becoming  insane,  may  be  more  or 
less  accurately  and  faithfully  performed  by  them. 

An  asylum  band  with  wind  or  string  instruments  may  be 
largely  composed  of  patients,  and  creditable  piano  performers  are 
occasionally  found  among  even  the  hopelessly  demented. 

Patients  attend  chapel  services,  lectures,  }:>erformances,  and 
dances,  and  observe  the  proprieties  at  such  times  to  a  remarkable 
degree.  In  fact,  all  the  possible  self-control  they  can  exert  seems 
to  be  called  into  requisition  during,  and  in  anticipation  of,  en- 
tertainments. When  certain  days  are  regularly  set  apart  for  such 
assemblages  it  is  noticed  that  the  patients  generally  are  "  on  their 
good  behavior"  at  such  times,  even  though  "disturbed"  during 
other  days. 

Chronic  alcoholic  lunatics  are  the  most  troublesome  inmates  of 
the  asylum,  because  their  apparent  sanity  secures  privileges  for 
them  which  they  occasionally  abuse  by  breaking  their  parole 
and  getting  drunk,  or  escaping.  The  proverbial  cunning  of 
some  of  the  insane  may  be  exercised  in  dissimulation,  or  conceal- 
ing their  insanity.  The  advice  will  often  be  tendered  by  one 
patient  to  another  not  to  do  or  say  certain  things  if  he  wishes  to 
couvince  the  physician  that  he  has  recovered;  and  occasionally  a 
patient  is  found  with  self  control  enough  to  successfully  hide  his 
insanity. 

Among  the  well  behaved  patients  are  many  who  are  con- 
valescing or  have  just  recovered,  some  who  are  enjoying  re- 
missions of  their  insanity,  the  so-called  lucid  intervals ;  others 
may  appear  to  be  sane  upon  casual  inspection ;  they  may  con- 
verse intelligently  within  the  limits  of  what  would  be  expected 
from  estimates  of  their  social  positions,  and,  nevertheless,  there 
may  be  among  these  quite  dangerous  paranoiacs,  as  well  as 
numerous  other  chronic  insane.  While  inversion  of  character 
is  the  rule,  in  many  instances  previous  training,  education,  and 
mental  capabilities  go  a  long  way  towards  modifying  the  insane 
exhibitions  of  some  patients.     Native  politeness,  considerateness, 


SYMPTOMS.  33 

affection,  the  lady,  and  the  gentleman,  may  persist ;  but  not 
always,  for,  in  spite  of  the  best  previous  circumstances,  character, 
and  surroundings,  there  may  be  disgusting  offensiveness ;  and  in- 
sane women  are  notoriously  more  obscene,  blasphemous,  and 
indecent  than  are  men  with  the  same  kind  of  mental  disorder. 

Premeditation,  design,  deliberation,  malice,  and  provocation 
are  exhibited  by  numbers  of  the  insane  who  are  engaged  in 
work  that  requires  planning,  forethought,  patience,  and  ingenuity. 
For  example,  an  insane  artist  may  continuously  work  at  a 
painting  by  observation  and  study  that  require  reference  to 
historical  and  other  books ;  he  will  sketch  his  studies  and  elaborate 
them  on  canvas,  and  to  secure  the  means  to  purchase  material  he 
will  paint  "pot  boilers"  or  do  ornamental  decorating  for  a  con- 
sideration,— all  with  reference  to  completing  his  artistic  work. 
Possibly  furious  outbreaks  or  periods  of  depression  may  interrupt 
such  labor,  and  something  in  the  subject  or  manner  of  the  paint- 
ing may  indicate  the  unsoundness  of  the  mental  state  ;  but,  on 
the  other  hand,  nothing  of  the  kind  may  occur,  and  the  in- 
sanity may  be  profound  and  have  no  relation  to  the  undertaking. 
In  some  cases  this  ability  to  think  and  plan  ahead  may  be  asso- 
ciated directly  with  the  insanity  and  determine  its  acts ;  hence  de- 
liberation, premeditation,  and  design  are  not  inconsistent  with 
insanity  in  some  of  its  forms,  and  may  be  exercised  under  provo- 
cation, or  from  malicious  motives,  such  as  might  influence  a  sane 
person  to  acts  of  retaliation  or  criminality. 

The  legions  of  tramps  contain  many  insane ;  some  could  be 
classed  as  drunken  insane  and  other  as  insane  drunkards,  while 
others  still  do  not  use  liquor,  and  are  what  is  known  in  Germany 
as  the    Vagabundemvahnsinn,  sufferers. 

Business  ability  is  lessened  in  the  great  majority  of  insane 
cases,  but  among  a  few  business  capacity  may  be  markedly  in- 
creased. Paretic  dements  in  the  beginning  of  the  exhilarated 
stage  of  their  malady,  and  patients  with  simple  mania,  as  well  as 
some  paranoiacs,  may  develop  an  astonishing  commercial  apti- 
tude, comparable  to  the  successful  "  sprinting  "  of  some  alcoholic 
board  of  trade  men.  The  recklessness  of  insanity  caused  by 
drinking  habits  may  be  accompanied  by  an  exaltation  of  the  in- 
tellectual faculties  necessary  to  the  conduct  of  business  on  a  large 
3 


34  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

scale,  or  the  insanity,  or  alcoholism,  may  suppress  considerations 
and  sentiments  which  previously  held  the  operator  in  check. 

A  large  majority  of  asylum  inmates  are  easily  managed,  and 
patients  are  usually  separated  into  wards  according  to  their  be- 
havior or  needs.  The  epileptics  can  be  trusted  to  care  for  one 
another  during  their  occasional  convulsions  and  furies,  and  as  most 
of  them  are  fairly  rational  between  attacks,  and  rarely  more  than 
one  patient  at  a  time  needs  attention,  their  fellow  feeling  can  be 
depended  upon  for  mutual  assistance.  Some  of  the  epileptics  are 
allowed  much  liberty,  though  the  danger  of  outbreaks  demands 
systematic  oversight  of  most  of  them.  The  furious  patients  are 
kept  in  wards  that  are  necessarily  somewhat  barren  of  furniture 
and  other  movables  that  can  be  destroyed  or  converted  into  weap- 
ons ;  and  the  filthiness  of  many  compels  their  separation  from  the 
tidier  classes,  in  special  wards  where  water  can  be  used  freely  and 
frequent  changes  of  clothing  made.  Of  course  the  dress  of  patients 
must  be  adjusted  to  their  inclinations  to  destroy  and  soil  clothing. 

Changes  in  the  conduct  of  patients  require  their  removal  to 
appropriate  wards.  It  would  be  unjust  to  convalescent  cases  to 
inflict  upon  them  the  presence  of  a  turbulent  person,  nor  would 
it  do  the  latter  any  good ;  rather  the  reverse,  for  some  self-con- 
trol is  occasionally  exerted  by  the  patient  in  the  hope  of  promo- 
tion to  a  better  ward,  and  the  fear  of  removal  may  help  to  sup- 
press an  outbreak  that  would  occasion  the  change.  But  the 
influence  is  only  in  a  few  cases,  and  by  no  means  commonly  regu- 
lates the  actions.  The  patients  are  not  only  generally  in  a  state 
of  unstable  equilibrium,  but  usually  are  wholly  irresponsible. 
Causes  beyond  their  control,  and  but  little  within  that  of  their 
medical  and  other  attendants,  tend  to  make  them  temporarily 
better  or  worse.  Many  are  doomed  from  the  first,  while  a  ma- 
jority is  destined  to  recover,  or  to  undergo  improvement ;  but 
time  is  required  in  all  cases  to  establish  the  outcome,  and  there 
will  be  exacerbations  and  remissions,  of  various  degrees,  during 
the  intervening  period. 

Many  vulgar  superstitions  are  held  regarding  insanity,  and  one 
that  comes  down  from  the  days  of  witchcraft  is  that  the  moon's 
phases  regulate  the  explosions  of  insanity.  The  word  "lunatic" 
is  derived  from  this  belief  in  lunar  control.  As  Spencer  points 
out,  many  popular  errors  are  due  to  imperfect  observation,  and 


SYMPTOMS. 


35 


more  accurate  observation,  which  constitutes  science,  dispels  such 
delusions,  at  least  from  among  the  better  informed.  The  idea 
that  the  moon  had  anything  to  do  with  lunacy  probably  arose 
from  the  fact  that  light  of  any  kind  shining  into  an  insane  pa- 
tient's bedroom  frequently  caused  restlessness  or  fury.  Drop- 
ping the  curtain  to  a  room  into  which  the  moon  shines,  or  extin- 
guishing the  light  in  the  room,  would  suffice  in  many  cases  to 
quiet  the  disturbed  patient. 

The  insane  are  probably  more  affected  by  changes  in  the 
weather  than  are  healthy  persons.  For  that  matter  few  escape 
meteorological  sway  of  feeling,  whether  sane  or  insane.  There 
are  periods  of  unaccountable  depression  and  exuberance  of  joy 
with  all  of  us.  Little  ills  may  seem  magnified  into  terrible  evils, 
and  we  are  "  blue"  without  exactly  knowing  why;  but  such  fits 
are  apt  to  be  upon  muggy,  stormy  days,  when  the  barometer 
pressure  is  low  and  there  is  less  electricity  in  the  air.  Even 
chickens  are  droopy,  and  other  animals  show  restlessness ;  horses 
look  dejected,  cows  low ;  dogs  and  cats  are  sulky  and  snappish. 
Teachers,  jailers,  and  asylum  officials  observe,  among  their 
charges,  restlessness  and  ill  temper;  in  hospitals  the  sick  com- 
plain more,  and  it  is  to  be  expected  that  in  asylums  the  mentally 
deranged  will  find  in  such  conditions  aggravation  0f  their  un- 
stable,  nervous  states,  so  responsive  to  little  adversities.  Business 
men  are  not  inclined  to  make  ventures  at  such  times,  nor  even  to 
trust  their  own  judgment,  which  they  feel  may  be  awry  on  ac- 
count of  the  weather.  Eloquent  sermons  fall  flat  upon  congre- 
gations under  such  depression,  and  everywhere  animation  is  toned 
down.  The  passing  of  the  storm,  restoration  of  the  sunshine  and 
the  electrical  tension,  raise  the  spirits  of  all;  more  activity  is  seen 
in  business  circles,  and  the  reaction  may  lead  to  some  hysterical 
joyousness,  as  seemingly  unwarranted  as  was  the  previous  de- 
pression. 

Prolonged  high  temperature  increases  the  death  rate  in  cities, 
and  equable  conditions  of  weather  and  temperature  are  best  for 
sufferers  from  nervous  disorders,  but  with  the  -greatly  lowered 
vitality  of  the  insane  they  find  more  comfort  upon  days  and 
nights  that  are  to  the  healthy  unendurable,  and  suffocatingly  hot. 
They  have  been  known  to  close  windows  upon  such  nights  to 
secure   more   warmth.     Many  insane,  however,  are   apparently 


36  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

unconscious  of  mere  heat  and  cold,  and  safely  undergo  expos- 
ures that  would  kill  a  person  in  good  health.  But  head-injury 
cases  may  suffer  headaches,  and  others  among  the  insane  may 
prove  exceptions  to  the  rule.  Quiet,  routine,  rest,  and  absence 
of  confusion  are  essential  to  the  care  of  the  insane,  and  when 
these  can  be  secured  the  chances  of  recovery  are  increased. 

Excitement  is  not  peculiar  to  mania  alone,  nor  even  to  maniacal 
states,  for  the  melancholiac  may  be  agitated,  and  during  the 
period  of  raptus  melancholicus  exhibit  extreme  fury.  Usu- 
ally the  maniacal  excitement  is  aggressive  or  offensive,  while  the 
turbulence  of  the  melancholiac  is  defensive,  and  is  prompted  by 
terror.  Some  lunatics,  such  as  those  with  chronic  mania,  may  be 
constantly  "  disturbed  ; "  screaming,  destroying  everything  it  is 
possible  to  destroy,  smashing  windows  and  furniture,  bedaubing 
themselves  and  their  surroundings  with  filth,  while  others  may  be 
demonstrative  at  long  or  short  intervals.  Occasionally  a  hitherto 
very  quiet  patient  may  vary  the  monotony  of  his  life  by  a  fiend- 
ish outbreak,  all  the  more  dangerous  because  unlooked  for. 
Some  appear  to  wait  for  an  opportunity  to  wreak  vengeance 
upon  the  objects  of  their  hatred.  While  spontaneous  and  unpre- 
meditated attacks  upon  others  are  frequent  enough  among  the 
insane,  the  presence  of  anyone  who  is  disliked  often  increases  the 
hostility;  and  those  who  have  been  friendly  or  kind  to  patients 
have  the  greater  influence  for  good,  and  often  have  a  calming 
effect. 

The  manner  in  which  many  insane  respond  to  impressions  may 
be  styled  qualitative  and  quantitative.  For  instance,  attempted 
kindnesses  may  be  resented  because  they  are  misinterpreted,  and 
the  quality  of  such  contacts  with  the  world  may  not  be  appre- 
ciated properly,  while,  on  the  other  hand,  a  large  number  of  the 
insane  understand,  all  too  keenly,  the  intentions  of  others  towards 
them,  and  merely  react  quantitatively,  by  being  either  too 
promptly  or  less  readily  influenced.  A  chronic  maniac  with  peri- 
odical exacerbations  was  roused  to  great  fury  by  the  taunts  and 
harshness  of  attendants  at  the  county  asylum,  but  instantly  upon 
the  appearance  of  one  who  had  been  uniformly  kind  a  visible 
effort  to  acquire  self-control  was  made,  and  evident  shame  at  being 
seen  in  so  disturbed  a  state  caused  the  maniac  to  hide  away. 

The  noisiness  of  asylums  rises  and  falls.     Sunday  is  a  quiet 


SYMPTOMS.  37 

day,  if  visitors  are  few ;  and  it  is  inhuman  to  permit  troops  of 
curiosity  seekers  to  irritate  patients.  Among  a  thousand  patients 
not  more  than  a  dozen  may  at  one  time  be  difficult  to  manage, 
and  there  are  pleasant  days  when  scarcely  any  disturbance  is 
made ;  but  here  and  there  one  will  scream  or  shout,  and  another 
will  laugh  boisterously.  Some  deliver  vociferous  harangues,  and 
others  sing ;  a  few  chatter  nonsense  or  indulge  in  clownish  con- 
tortions. One  maniac  at  the  county  asylum  whistled  on  an  aver- 
age ten  hours  a  day,  which  left  him  little  time  to  do  anything 
else.  Clouston  tells  of  a  patient  in  Edinburgh  who  was  occupied 
in  gardening,  and  who  acted  intelligently,  and  showed  insanity  in 
no  other  way  than  in  talking  gibberish.  .Not  an  intelligent  word 
could  the  man  utter,  yet  he  showed  by  his  acts  that  he  was 
sane  in  all  things  but  speech.  His  affliction  was  a  sort  of  maniacal 
perversion  of  the  speech  faculty. 

Max  Miiller,  the  philologist,  claims  that  thought  is  impossible 
apart  from  speech,  but  he  is  not  sustained  in  this  view  by  biolo- 
gists, physiologists,  or  alienists.  The  fact  that  the  deaf  and  dumb 
are  not  necessarily  unintelligent  disproves  his  theory  at  once. 
But  there  is  close  relationship  between  intellect  and  the  faculty 
of  speech.  Certainly  the  proper  use  of  language  depends  upon 
mental  integrity,  but  linguistic  ability  may  undergo  change  or  loss 
independent  of  the  condition  of  the  mind.  A  young  lady  suffer- 
ing with  right-side  hemi-chorea  became  mentally  confused  when 
she  attempted  to  speak,  and  could  think  clearly  only  when  silent. 
Probably  the  erratic  working  of  her  vocal  organs  distracted  her 
attention  from  what  she  intended  to  say.  A  degenerate  with  in- 
sanity of  double  form  would  begin  speaking  correct^  enough,  and 
answer  questions  properly,  and  then  launch  into  a  jabber  of  mean- 
ingless words  characteristic  of  some  hopeless  cases;  again  speaking 
clearly,  temporarily,  when  rested,  and  repeating  the  gibberish 
when  tired. 

Speech  disturbances  may  arise  in  connection  with,  or  apart 
from,  insanity,  and  be  due  to  derangements  of  the  vocal  appa- 
ratus, of  the  nervous  control  of  such  mechanism,  of  the  brain 
center  of  speech,  or  of  the  intellectual  use  of  language. 

Various  speech  defects  enumerated  under  organic  brain  dis- 
ease may  or  may  not  be  associated  with  other  impairment  of  the 
intellect.     Stammering  or  stuttering  is  not  due  usually  to  mind 


oS  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

implication  ;  but  the  hesitating  drawl  of  the  paretic,  and  especially 
the  "coprolalia,"  or  impulse  to  ejaculate  filthy  words,  certainly 
indicate,  at  least,  will  paralysis,  as  much  as  would  other  similar 
excitation  of  speech  independent  of  mental  control. 

Motor  excitement  may  be  worked  off  in  various  ways  ;  one  may 
prefer  to  walk  incessantly,  another  to  vociferate ;  and  the  exces- 
sive garrulity  of  some  maniacs  has  been  lessened  by  diverting 
occupation. 

At  intervals  an  unanticipated  outbreak  occurs  in  an  asylum, 
resembling  the  "running  amuck'"  of  the  Orientals.  Epileptics 
periodical  cases,  paretics,  traumatics,  alcoholics,  and  others,  may 
surprise  the  asylum  by  such  an  exhibition  of  maniacal  fury. 

Epileptics,  during  the  interval  of  these  attacks,  may  combine 
to  escape,  and  the  attempt  may  cause  an  epileptic  fury,  more  or 
less  general,  among  them.  They  may  induce  other  insane,  such 
as  paranoiacs  and  paretics,  to  join  with  them ;  but  the  greater 
number  of  patients  cannot  sustain  concerted  action,  and  are  more 
liable  to  assist  attendants,  probably  to  curry  favor  with  the  party 
in  power,  or,  what  is  still  more  likely,  the  other  patients  will  be 
indifferent  to  what  is  going  on.  This  indisposition  of  patients  to 
interfere  is  relied  upon  to  enable  a  few  attendants  to  control  a 
large  number  of  insane.  Isolated  cases  may  need  a  dozen  per- 
sons to  manage  them  for  awhile :  but  ordinarily  one  attendant  can 
control  from  forty  to  a  hundred  patients,  according  to  the  char- 
acter of  their  mental  disorders. 

Ecstatic  excitement  is  rare,  but  may  be  found  among  the  so. 
called  "  religious  insane,"  or  the  stagy  behavior  of  katatoniacs 
may  be  miscalled  ecstacy.  Some  of  these  katatoniacs,  as  well  as 
paranoiacs  or  paretics,  may  lie  in  wait  for  victims,  watching  near 
a  door,  with  uplifted  arm  ready  to  assault  the  first  one  who 
enters. 

Some  insane  can  be  diverted  from  intended  attacks,  while  others 
are  not  to  be  beguiled.  A  paretic  or  melancholiac  can  usually  be 
drawn  away  from  a  harmful  beginning;  but  maniacs,  paranoiacs, 
and  some  others,  laugh  at,  and  see  through,  any  method  of  de- 
fense. 

It  is  necessary  to  recollect  that  in  simple  mania  the  intellect 
and  the  senses  are  in  a  state  of  exaltation,  and  the  mental 
activities  mav  be  greater  than  ever.     Tumultuousness  of  thought 


SYMPTOMS.  39 

is  not  indicated  in  all  cases  by  incoherence,  for  the  thoughts 
may  be  merely  too  rapid  for  expression.  It  would  be  a  great 
mistake  to  treat  a  maniac  as  though  he  were  a  fool,  for  he  will 
remember,  and  may  act  according  as  he  has  fared  at  the  hands 
of  others. 

Maniacs,  and  the  majority  of  other  acute  cases,  usually  recog- 
nize acquaintances,  though  they  are  liable  to  mistake  persons; 
but  where  grievances,  real  or  imaginary,  are  to  be  redressed, 
it  is  seldom  safe  to  rely  upon  failure  of  recognition.  Many  insane 
hold  enmities  for  years,  and  upon  a  favorable  occasion  may  show 
that  they  have  been  awaiting  their  opportunity  for  revenge.  The 
insane  often  have  their  likes  and  dislikes,  and  are  moved  to  anger 
and  joy,  and  entertain  other  emotions  rationally,  as  well  as  irra- 
tionally. Because  an  insane  person  is  amenable  to  some  sane  in- 
fluences it  does  -not  constitute  him  "  partially  insane."  Resent- 
ment and  gratitude  are  noticeable  traits  among  all  but  those  whose 
minds  are  wholly  destroyed. 

Criminal  propensities  can  be  more  conveniently  regarded  in 
other  chapters  of  this  book. 

Excitement  may  even  be  a  favorable  indication,  within  limits, 
if  it  occur  as  a  rebound  from  a  previously  depressed  state. 

The  hopefulness  of  phthisis  may  tinge  insanity,  with  which  it 
is  complicated ;  happiness  characterizes  both  the  quiet  and  the 
active  paretic  dements.  Though  the  gaiety  of  the  maniac  is 
unstable,  his  alliterative  and  rhyming  recitations  may  be  prolonged 
indications  of  the  joy  he  experiences.  Irritability  is  found  oftener 
among  traumatic  and  alcoholic  patients. 

Mania  and  paretic  dementia  often  attract  attention  to  the  char- 
acter change  by  the  sudden  perversity  of  disposition,  which  is 
all  too  often  attributed  to  alcoholic  indulgence,  when  this  has  been 
merely  induced  by  insanity.  The  moral  degeneracy  of  insanity 
causes  low  company  to  be  sought  and  excesses  to  be  committed,  the 
bare  thought  of  which  would  have  been  intolerable  to  the  sufferer 
previous  to  the  insanity.  Reckless  squandering,  and  actual  throw- 
ing away  of  money  to  strangers  on  the  streets,  occur  in  mania  and 
paretic  dementia,  especially  with  an  alcoholic  complication.  There 
appears  to  be  a  morbid  impulse  among  some  to  divest  themselves 
of  everything  of  value,  as  though  possession  of  anything  in  the 
way  of  jewelry  or  money  was  disagreeable  to  them.     Money  may 


40  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

be  borrowed  or  things  stolen  by  snch  lunatics,  for  the  pleasure 
experienced  in  throwing  or  giving  them  away,  or  to  furnish 
means  for  riotous  living. 

Spendthrift  excitement  accompanies  several  forms  of  insanity 
among  the  younger  patients,  while  in  age  the  natural  parsimony 
may  develop  into  extreme  miserliness,  or  even  an  inclination  to 
do  without  necessities  rather  than  part  with  money,  though  it  may 
be  owned  in  superabundance.  Excitement  may  at  the  latter 
period  of  life  also  take  the  form  of  loquacity  or  garrulity,  which 
when  the  patient  is  alone  becomes  soliloquizing.  In  the  younger 
insane,  particularly  in  hebephrenia,  wandering  about  aimlessly  is 
the  manifestation  of  the  restless  disposition. 

Alienated  affections  are  among  the  first  symptoms  of  many 
mental  diseases,  especially  in  puerperal  insanity,  alcoholic  insane 
states,  and  paretic  dementia,  and  to  a  lesser  degree  in  melan- 
cholia. 

Increased  sexual  desire  accompanies  many  different  insanities, 
and  may  lead  to  criminal  or  immoral  acts,  or  be  more  or  less  con- 
cealed. Self-abuse  is  one  of  the  debilitating  causes  of  some 
insanities,  particularly  just  before  puberty,  but  the  practice  is 
one  of  the  most  common  with  the  majority  of  the  insane  of 
both  sexes,  and  is  oftener  the  result  than  the  cause  of  insanity. 
"Borderland  cases"  are  those  in  which  the  troublesomeness 
of  the  patients  is  sufficient  to  cause  great  annoyance  and  appre- 
hension at  their  homes,  while  the  insanity  does  not  appear  to  be 
of  such  a  nature  as  to  justify  removal  to  an  asylum.  Many 
patients  of  this  and  the  recurring  kind,  or  who  are  otherwise  in 
possession  of  intellect  enough  to  impose  upon  others,  give  great 
annoyance  by  seeking  habeas  corpus  releases.  It  may  be  laid 
down  as  a  rule  that  the  more  frequently  habeas  corpus  proceed- 
ings have  been  started  by  a  patient  the  more  likely  he  is  to  be  a 
dangerous  person  to  be  abroad.  The  circular  insane  and  para- 
noiacs  are  prominent  in  this  class. 

A  disposition  to  persecute  and  prosecute  others,  and  to  become 
court-room  nuisances,  characterizes  some  degenerates. 

The  emotional  excitement  may  take  the  form  of  intense  egotism 
or  pride,  as  among  the  megalomaniacs  of  degeneracy.  Selfish- 
ness is  often  exaggerated  brutally  in  insanity,  though  generosity 
may  persist  as  a  relic  of  former  soundness  of  mind,  or  even  be 
insanely  exaggerated. 


SYMPTOMS.  4  L 

Depression  serves  as  another  term  under  which  may  be  gathered 
the  less  obtrusive  states  of  insanity,  from  the  profound  lack  of 
energy  of  stupor,  and  the  "  thunderstruck  "  terror  of  melancholia 
attonita,  to  slight  listlessness  of  mere  mental  enfeeblement. 

Melancholia  and  hypochondria  are  not  always  of  the  quiet 
order,  for  the  former  particularly  may  be  agitated  enough  to  be 
mistaken  for  mania.  Many  of  the  phobias  and  indecision  states 
are  associated  with  depression. 

Delusions  as  to  persecution,  as  well  as  many  other  insane  states, 
may  be  manifested  by  anxiety,  shame,  remorsefulness,  grief,  sor- 
row, suspiciousness,  obstinacy,  jealousy,  apprehension,  timidity, 
reticence,  or  absolute  mutism. 

Nostalgia  is  the  particular  affliction  of  people  who  come  from 
mountainous  countries,  such  as  the  Scandinavians  and  Swiss. 
The  simple  depression  of  homesickness  is  frequently  fatal,  and  a 
return  to  home  will  promptly  restore  cheerfulness  and  health. 

Depression  may  be  a  sign  of  recovery  from  mania.  But  the 
depression  of  vitality  which  leads  to  the  indifference,  seclusion, 
and  untidiness  of  the  dement  is  of  a  more  negative  character 
than  that  which  prompts  the  melancholiac,  or  other  patient,  to 
refuse  food.  Ideas  of  unworthiness  or  suspicion  of  poison,  with 
or  without  a  desire  to  commit  suicide,  instigate  refusal  of  food,  or 
there  may  be  a  physical  repulsion  to  food  independent  of  all  these- 
causes. 

Insane  actions,  other  than  those  mentioned  above,  due  to 
enfeeblement  or  perverted  volition,  memory,  or  general  intellectual 
degradation,  are  too  numerous  to  detail  fully,  but  a  few  principal 
peculiarities  of  the  kind  can  be  noted.  Some  of  the  most  im- 
portant are  such  as  arise  from  the  exertion  of  undue  influence 
upon  the  insane,  to  be  regarded  later  in  connection  with  other 
medico-legal  matters.  The  disposition  to  imitate  in  some  of  the 
insane  originates  an  occasional  instance  of  communicated  insanity 
and  adopted  delusions.     Folie  d  deux  thus  arises. 

Somnambulism  and  other  irresponsible  sleep  states,  as  the 
/SchlqftrunJcenheit,  in  all  of  which  crime  may  be  committed  and 
no  recollection  thereof  be  preserved  by  the  culprit,  are  insane  acts. 

Malicious  mischief,  or  its  semblance,  is  common  with  imbeciles, 
hebephreniacs,  the  hysterical  insane,  and  occasionally  other  kinds 
of  patients.  False  accusations  and  confessions  are  most  likely  to 
occur  in  hysteria  or  at  puberty. 


42  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

Improper  marriages  are  characteristic  of  alcoholics  and,  to  a 
lesser  degree,  numerous  other  kinds  of  insane. 

Indecencies  in  public  occasion  arrests  of  persons  and  lead  to 
the  first  recognition  of  their  insanity. 

Disappearances  are  often  the  result  of  insanity  appearing 
suddenly,  or  the  consequence  of  mental  diseases,  though  foul 
play,  suicide,  and  undetermined  causes  also  co-operate  in  mys- 
terious absences. 

People  have  wandered  away  from  home  after  head  injuries, 
during  alcoholic  or  epileptic  attacks,  or  while  suffering  from  senile 
dementia,  transitory  frenzy,  mania,  paretic  dementia,  and,  par- 
ticularly, hebephrenia.  Such  are  most  liable  to  be  found  again, 
or  come  to  grief  in  some  way  through  accident.  Melancholiacs 
furnish  the  most  numerous  disappearances  due  to  suicide,  though 
other  insane  are  also  suicidal.  Among  cases  of  disappearances 
subsequently  accounted  for  are  many  due  to  murders  in  various 
ways  and  from  all  imaginable  motives.  Both  the  sane  and  insane 
have  enlisted  in  the  army  or  navy,  or  simply  abandoned  home 
from  various  reasons  sufficient  or  insufficient ;  in  many  instances 
the  circumstances  point  to  probable  mental  impairment  as  the 
main  cause. 

The  possibility  of  epileptic  double  consciousness  enabling  any- 
one to  lead  two  separate  existences  for  long  periods,  during  one 
of  which  no  remembrance  of  the  former  life  may  be  preserved, 
rests  upon  good  authority.  Dr.  S.  Weir  Mitchell,  of  Philadel- 
phia, is  referred  to  for  some  striking  examples.  The  passing 
from  one  state  of  consciousness  to  the  other  would  entail  abandon- 
ment of  the  late  home,  often  resulting  in  great  suffering  to  others. 

Of  course  accidental  death,  by  falling  from  a  ferry-boat,  or 
bridge,  or  similar  causes,  occurs  to  perfectly  sane  persons,  and 
their  bodies  may  never  be  identified  or  found. 

A  Nebraska  judge  abandoned  his  home  suddenly  and  was  dis- 
covered working  in  an  Iowa  lumber  camp,  long  afterwards,  as  a 
common  laborer.  Whether  this  was  owing  to  insanity  or  not  has 
not  been  clearly  made  out ;  but  an  Omaha  physician  claims  that 
after  an  operation  which  restored  his  eyesight  he  grew  utterly 
indifferent  to  all  his  former  friends  and  relatives,  and,  though 
otherwise  appearing  to  be  sane,  he  sympatized  with  the  judge  who 
had  left  his  home  apparently  from  the  same  mental  causes  that 


SYMPTOMS.  43 

had  been  followed  in  the  physician's  case  by  antipathetic  feeling 
towards  his  former  surroundings.  In  both  cases  overwork  was 
stated  as  having  preceded  the  ill-health  and  change  of  disposition. 

A  printer  abandoned  his  wife  and  child  and  was  found  dead  in 
a  freight  car  a  thousand  miles  from  his  home.  He  had  suffered 
since  a  child  with  suppurative  inflammation  of  the  middle  ear. 
A  politician  whose  accounts  were  found  to  be  extremely  confused 
disappeared,  and  returned  after  a  few  months'  absence,  claiming 
to  have  no  recollection  of  events  during  his  absence.  Insanity 
might  have  been  inferred  from  the  likelihood  that  a  sane  poli- 
tician would  have  been  more  likely  to  stay  and  brazen  matters 
out,  or  otherwise  "  fix  "  his  accounts. 

A  hard-working  and  hard-drinking  author  of  a  great  com- 
mercial cyclopEedia  frequently  disappeared  from  his  office  and 
turned  up  in  hospitals,  but  finally  was  lost  sight  of  altogether. 

Abductions  or  accidental  death  would  account  for  the  sudden 
vanishing  of  little  children.  Country  girls  are  too  often  abducted 
or  enticed  into  immoral  lives,  and  imbecile  females  are  quite  liable 
to  be  induced  to  become  abandoned,  and  to  forsake  their  homes. 

Consciousness  is  involved  in  insanity,  from  alteration  or  im- 
pairment to  its  complete  extinction.  There  are  no  certain  tests, 
either  in  medicine  or  law,  as  to  consciously  performed  acts- 
Each  case  must  be  decided  by  itself.  Automatic  acts  may  be 
performed  while  unconscious,  and  many  of  these  are  extremely 
complex.  An  epileptic  can,  while  absolutely  unconscious,  do 
many  apparently  intelligent  things,  some  of  them  requiring  dis- 
cernment, ingenuity,  secretiveness,  tact  as  well  as  strength,  and  a 
boldness  that  may  be  foreign  to  his  character  when  sane. 

The  trance  performances  of  alcoholics  may,  even  to  a  greater 
degree,  be  consistent  with  an  apparent  exercise  of  judgment,  rea- 
son, and,  in  short,  every  faculty  and  sense  but  that  of  conscious- 
ness. 

Somnambulists  have  been  classed  as  the  speaking,  the  acting, 
the  speaking  and  acting,  the  hearing,  speaking,  and  acting,  the 
seeing,  speaking,  and  acting,  and  the  hearing,  seeing,  speaking, 
and  acting.  Westphal  and  Siemens1  enter  fully  into  the  forensic 
import  of  these  sleeping  attacks,  and  the  former  refers  to  the  case 

1  Archiv.  fur  Psychiatric,  VIII.,  200,  IX.,  72. 


44  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

of  You  Zastrow.1  '  The  relationship  of  epilepsy  to  these  sleeping 
disorders  is  considered  by  all  modern  authors  on  such  subjects. 

What  is  called  mind  and  word  blindness  and  deafness  are  states 
of  obliteration  of  consciousness  exercised  in  the  recalling  of  words 
which  have  been  learned  through  optic  or  aural  sources,  caused 
by  suppression  of  the  psychic  registration  of  such  impressions. 
Double  or  alternating  consciousness,  also  akin  to  epileptic  altera- 
tions of  the  brain  function  in  that  regard,  consists  of  changes  in 
conscious  states,  as  though  different  levels  of  consciousness  could 
exist  alternately.  Absence  of  mind  is  a  healthy  process,  and  may 
indicate  a  high  order  of  reasoning  ability,  and  the  power  of  in- 
tense concentration :  but  the  empty  abstractions  of  paretic 
dementia  are  by  no  means  of  this  nature.  While  Isaac  Xewton 
who  was  subject  to  healthy  abstraction,  could  benefit  the 
world  by  telling,  afterwards,  of  what  he  had  been  thinking, 
the  paretic  has  been  wholly  unconscious,  and  cannot  truthfully 
state  that  there  was  anything  in  his  mind  at  the  time  he  appeared, 
to  be  plunged  into  profound  thought. 

Change  of  sense  of  identity,  and  even  total  forgetfulness  of 
one's  own  name  and  antecedents,  are  perverted  states  of  con- 
sciousness, observed  occasionally  in  the  course  of  many  mental 
diseases. 

Confusion  and  incoherence  of  thought,  ideation,  reason,  intel- 
lect, imagination,  or  judgment,  may  not  be  indicated  by  mere 
speech  incoherence,  which  is  another  matter,  although  the  men- 
tal confusion  is  apt  to  lead  to  incoherent  speech.  The  mind 
may  be  confused  while  the  patient  is  silent,  or  silliness  of  speech 
may  sometimes  exist  with  clearness  of  intellect,  but  of  course 
mental  and  speech  incoherence  are  often  associated.  In  mania 
the  mental  processes  may  be  abnormally  clear,  but  their  rapidity 
is  too  great,  at  times,  for  expression  ;  and  sentences  are  unfinished 
because  speech  is  too  slow  to  express  what  is  passing  in  the- 
mind ;  but  it  must  not  be  inferred  from  this  that  in  mania  the 
mind  is  always  free  from  confusion,  for  in  this,  as  well  as  in  other 
insanities,  it  is,  at  times,  completely  obscured,  and  at  such  times 
the  maniacal  speech  and  reasoning  are  both  incoherent. 

In  epilepsy,  speech  may  be  automatic,  regular,  coherent,  and 

1 1  Casper  and  Liman,  Medical  Jurisprudence,  509. 


SYMPTOMS.  45 

apparently  intelligent,  and  the  mind  may  be  a  blank,  so  far  as  wo 
are  able  to  determine ;  so  that  even  coherent  speech  is  possible  in 
the  absence  of  consciousness. 

Memory  derangements  may  be  partial  or  total,  temporary  or 
progressive,  according  to  the  removability  of  the  cause. 

Under  organic  brain  disease  some  of  the  more  serious  and  in- 
convenient memory  aberrations  are  mentioned,  as  the  inability  to 
remember  written  or  spoken  words,  or  gestures,  or  even  the  uses 
or  names  of  common  articles.  Amnesia  is  the  generic  term  for 
memory  loss,  and  the  various  kinds  of  amnesia  require  fuller  con- 
sideration in  the  chapters  on  Testamentary  Capacity  and  De- 
structive Brain  Disease. 

Any  disease  of  the  brain  may  affect  the  memory,  and  coinci- 
dental with  mental  weakness  there  may  be  memory  weakness. 
Memory  is  an  inseparable  part  of  the  intellect.  Temporary  anae- 
mia, or  malnutrition,  may  weaken  the  memory,  and  ordinary  rec- 
ollection varies  with  fatigue  or  freshness.  The  ability  to  commit 
things  to  memory  is  great  or  less,  according  to  the  health  at  the 
time ;  when  the  circulation  is  active  memory  is  often  at  its  best. 
Even  feverishness  may  increase  the  memory  temporarily  and 
•fitfully. 

In  maniacal  states  the  memory  may  be  prodigious,  and  in  sim- 
ple mania,  particularly,  it  is  often  abnormally  developed,  at  least 
in  the  early  stages ;  and  in  some  maniacs  this  memory  exalta- 
tion may  persist  throughout  the  disorder.  Upon  recovery  from 
mania  it  is  found  that  everything  is  fairly  well  recollected, 
though  here  and  there  hallucinations  may  intrude  themselves  into 
recollection,  and  the  patient  will  be  uncertain  or  positive  of  the 
reality  of  such  impressions,  according  to  his  native  intelligence  or 
ignorance. 

The  popular  notion  that  memory  loss  is  common  in  insanity  is 
quite  erroneous.  Melancholiacs,  among  others,  are  apt  to  feel 
humiliated  by  the  recollection  of  what  has  transpired,  and  deny 
recollection,  when  they  remember  very  well. 

During  some  of  the  delusive  or  furious  periods  of  mania,  melan- 
cholia, hysteria,  puerperal  fevers,  epilepsy,  and  paretic  dementia, 
the  memory  is  usually  seriously  impaired,  but  many  chronic  insane 
have  very  good  and  useful  memories ;  acts  intelligently  per- 
formed are  not  alone  enough  to  show  whether  memory  is  pres- 


46  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

ent  or  not.  Defects  of  moral  sense  are  occasionally  associated 
with  memory  debasement.  Some  imbeciles  through  their  inabil- 
ity to  understand  the  nature  of  an  act  commit  indecencies ;  or 
when  disease  deprives  one  of  knowledge  the  moral  sense  may 
suffer  without  responsibility. 

,  The  fading  away  of  memory  in  old  age  or  during  general  de- 
bility causes,  first,  loss  of  recollection  of  proper  nouns,  and  next 
of  some  common  nouns.  Recent  events  do  not  impress  the 
weakened  memory,  but  events  long  past  are  usually  distinctly 
recalled,  while  matters  that  have  just  occurred  may  be  readily 
forgotten,  regardless  of  their  importance. 

This  suggests  that  it  is  a  very  unfair  method  of  testing  the 
memory,  when  its  impairment  is  in  question,  to  show  that  far- 
off  things  are  recalled.  The  dotard  who  cannot  remember  whether 
he  has  just  eaten,  or  does  not  recognize  his  own  apartments,  may 
accurately  recollect  his  early  life. 

Memory  gaps,  or  lacunse,  occur  in  several  insanities,  or  some- 
times in  head-injury  cases  without  very  obvious  insanity.  Entire 
periods  of  life  may  be  obliterated  from  recollection,  and  brain 
compression  has  after  recovery  left  years  of  existence  unrecalled. 
Ray1  cites  the  case  of  Welshmen,  in  Philadelphia,  who  spoke  their 
native  tongue  during  severe  illness,  while  the  English  that  they  had 
spoken  since  their  childhood  was  forgotten.  Descent  into  deep 
mines  or  caissons  of  bridges  has  resulted  in  the  temporary  loss  of 
recollection  of  acquired  languages.  When  recovery  from  gaps  in 
memory  takes  place,  the  oldest  matters  are  first  reinstated,  and 
gradually  the  past  is  recalled,  from  the  more  remote  to  the  more 
recent,  until  the  last  things  that  have  been  forgotten  are  also  re- 
stored to  the  mind. 

In  senile  dementia  the  impairment  of  memory  of  recent  events 
is  extreme,  and  the  mind  in  general  is  not  only  enfeebled,  but  it 
is  deranged.  In  terminal  dementia  of  the  decided  type,  the  en- 
tire mentality,  including  memory,  is  both  weak  and  fickle ;  there 
is  neither  coherence  nor  cohesion.  Things  make  little,  if  any, 
impression,  and  are  soon  forgotten. 

What  the  Germans  call  Stimmarische  Errinnerung  is  the  im- 
paired memory  of  some  insane  and  drunkards  as  to  what  may 

1  Op.  cit.  306. 


SYMPTOMS.  47 

have  taken  place  at  periods  they  find  difficult  to  remember.  Only 
a  faint,  sketch-like,  very  spotted,  recollection  of  matters,  here  and 
there,  is  preserved. 

Defective  attention  frequently  induces  one  to  suppose  that  the 
memory  is  at  fault  when  it  has  only  been  insufficiently  exerted. 

Close  attention  is  at  the  root  of  powerful  memory,  and  the 
trustworthiness  of  memory  is  according  to  the  power  of  attention. 
Inattention  leaves  little  in  the  mind  to  be  recalled.  Often  after 
an  injury  that  results  in  suffering  and  in  hypochondriacal  states, 
the  patient  may  be  so  absorbed  in  his  miseries  as  to  be  impressed 
but  slightly  by  other  affairs,  whereupon,  finding  that  he  recollects 
imperfectly,  he  adds  to  his  other  apprehensions  the  fear  that  he 
is  losing  his  mind. 

False  memory,  or  paramnesia,  characterizes  healthy  as  well  as 
diseased  mental  states.  The  delusions,  hallucinations,  and  illu- 
sions of  the  insane  may  tincture  and  falsify  their  recollections 
after  recovery,  as  well  as  before  ;  but  the  pranks  and  uncertainty 
of  human  memory  are  so  well  known  to  lawyers  that  they  are 
notoriously  poor  witnesses,  because  they  frequently  interpolate, 
while  testifying :  "  If  my  memory  is  correct ;  "  "  to  the  best  of 
my  knowledge,"  etc. 

Normally  recollections  are  localized  by  some  important  or  im- 
pressive event,  as  "  before  or  after  the  war,"  "  before  or  after 
marriage,"  "  before  a  certain  journey,"  and  so  on.  Women  date 
matters  from  the  birth  of  children,  and,  similarly,  association 
assists  in  determining  when  a  certain  thing  may  have  taken  place. 

"We  are  also  more  likely  to  be  guided  in  what  we  recollect  by 
the  utility  or  interest  of  the  moment  of  occurrence,  and  things 
are  also  perceived  according  to  personal  bias  and  prejudice. 
Moreover,  recollections  change  from  day  to  day,  and  the  last 
remembrance,  instead  of  the  original  impression,  is  more  likely 
to  be  recalled ;  and  for  this  reason  the  liar  finally  comes  to 
believe  his  own  falsifications. 

Prolonged  trials,  such  as  that  of  the  Bell  telephone  patent  con- 
tests, reveal  the  fact  that  very  often  positiveness  of  recollection 
increases  with  the  remoteness  of  the  events.  Witnesses  who  in 
the  earlier  periods  of  the  contest  were  very  dubious  about  certain 
matters  were  found  several  years  later  to  have  grown  quite  as- 
sured of  what  before  they  stated  timidly. 


4:8  MEDICAL    JURISPRUDENCE    OF    INSANITY". 

Efforts  at  recollection  enable  one  to  fill  gaps,  but,  unfortu- 
nately, imagination  is  also  too  frequently  at  work  to  assist  in  this. 
A  sketch  may  consist  only  of  a  few  unconnected  outlines,  and 
yet  may  suffice  to  suggest  to  the  mind  a  picture  in  detail,  and 
later  you  may  fancy  that  the  details  had  been  filled  in  by  the  artist. 
Processes  of  inference  abridge  the  work  of  recollection,  and  too 
often  the  inference  is  taken  for  the  recollection,  and  there  may  be 
-a  marvelous  memory  of  what  has  never  happened,  with  astonish- 
ing vividness  of  details. 

Children  often  accept  as  true,  without  question,  ideas  that 
come  into  their  minds,  especially  when  their  notions  are 
approved  by  older  persons.  The  abnormal  imagination  of  the 
average  child  is  too  little  allowed  for  when  upon  the  witness 
stand.  Sincerity  and  apparent  accuracy  make  his  testimony  so 
impressive. 

Among  adults  strong  prejudices  and  weak  judgment  are  most 
apt  to  be  associated  with  false  memory.  Then  there  is  the  occa- 
sional ability  to  lie,  witli  the  desire  to  appear  omniscient.  Some 
experts  have  been  trapped  into  recollecting  authors  and  their 
writings  by  an  attorney  who  subsequently  showed  that  he  had  in- 
vented both  the  name  of  the  author  and  the  article  cited.  As 
Victor  Hugo  states,  "There  are  always  people  who  have  seen 
•everything."  There  are  persons  who  have  no  ability  to  distinguish 
between  the  fact  and  fictions  that  have  been  confidently  com- 
municated to  them.  Dreams  may  occasionally  obtrude  them- 
selves into  recollection,  and  with  difficulty  be  recognized  as  such. 
Illusions  of  memory  are  frequent  among  the  insane,  the  aged, 
and  children. 

"What  has  been  called  "  double  memory  "  consists  in  a  provok- 
ing feeling  that  a  certain  event  that  has  just  happened,  has  also 
been  previously  experienced  by  the  same  person.  Inattention 
accounts  for  most  of  such  instances ;  the  first  impression  being 
faint  because  of  lack  of  sufficient  observation,  and  the  second 
being  more  complete,,  with  failure  to  recall  the  time  and  place 
of  the  first  impression  made. 

Some  insane  insist  that  everything  that  has  happened  has  pre- 
viously occurred  in  their  recollection  ;  and  in  some  cases  they  in- 
sist that  all  that  they  experience  has  been  foretold  to  them. 

Delusions  are  faulty  ideas  arising  from  imperfect  inferences, 


SYMPTOMS.  49 

and,  as  no  human  being  is  free  from  mistakes,  delusions  are  the 
commonest  things  in  life.  Spitzka  defines  delusions  of  the  insane 
as  "  faulty  ideas  growing  out  of  a  perversion  or  weakening  of  the 
logical  apparatus."  Then,  where  the  logic  has  never  been  very 
good,  delusions  may  abound,  though  the  deluded  person  may  be 
considered  sane. 

Entire  nations  have  not  only  entertained  delusions  but  acted 
upon  them.  Thus,  in  1212,  under  the  boys  Stephen  and  Nicho- 
las, 50,000  children  were  sent  in  ships  to  capture  the  Holy  Land, 
on  the  delusion  that  innocence  of  the  crusaders  would  alone  se- 
cure victory.  The  greater  part  of  this  helpless  army  perished 
miserably  by  sea  and  land,  and  many  of  the  survivors  were  en- 
slaved by  their  captors.  Party  prejudice  and  religious  zeal  create 
delusions  that  enable  demagogues  and  bigots  to  make  tools  of  the 
people.  The  world's  history,  and,  for  that  matter,  the  history  of 
every  individual,  is  replete  with  the  entertainment  of  delusions. 

The  existence  of  delusion,  in  spite  of  its  universality,  has 
occasionally  been  made  a  test  of  insanity,  when  the  only  possible 
distinction  that  can  be  made  between  a  sane  and  an  insane  delu- 
sion is  that  one  is  held  by  a  sane  and  the  other  by  an  insane 
person. 

One  religious  sect  insists  that  the  other  is  deluded ;  nor  is  the 
character  of  the  act  induced  by  the  delusion  any  guide  to  the  de- 
termination of  sanity,  for,  while  under  insane  inspiration,  a  parent 
may  sacrifice  his  child  on  an  altar.  Human  sacrifices  were  common 
in  past  ages,  and  are  still  practised  in  some  "unenlightened" 
countries.  Enlightenment  is  a  relative  matter,  and  is  no  criterion 
of  what  should  constitute  insane  delusion,  for  the  next-door 
neighbor  of  the  most  learned  may  be  deterred  from  some  fiendish 
religious  practice  only  by  fear  of  the  prejudices  of  others,  which 
in  turn  he  looks  upon  as  unreasonable. 

Prichard,1  in  1837,  gave  reasons  which  have  never  been  contro- 
verted why  delusion  cannot  be  a  proper  test  of  insanity,  and 
predicted  that  the  time  would  come  when  insanity  could  be 
demonstrated  in  some  cases  as  free  from  delusion.  We  now 
know  that  in  imbecility  and  other  mental  derangements  there 
need    be   no    delusion,  and   that   in   stuporous   insanity,  confu- 

On  Insanity,  16,  272. 
4 


50  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

sional  insanity,  transitory  frenzy,  and  epileptic  insanity  delu- 
sions are  undemonstrable,  because  consciousness  is  absent ;  and 
to  claim  that  delusions  may  exist  in  the  absence  of  consciousness 
is  equivalent  to  admitting  the  possibility  of  any  other  undemon- 
strable thing,  such  as  that  of  "Jack  and  the  Bean  Stalk"  stories. 

The  contents  of  delusions  of  the  insane  are  numberless,  and  are- 
not  of  so  much  importance  as  their  classification.  Spitzka's- 
separation  of  delusions  into  systematized  and  unsystematized, 
is  an  important  one.  The  systematized  delusion,  one  that  is 
logically  arranged,  explained,  and  defended,  occurs  in  but  two  forms 
of  insanity :  paranoia  and  hysterical  insanity.  Reasons  can  be 
given  by  such  deluded  patients  for  all  their  affirmations  relating 
to  the  delusion.  The  unsystematized  is  the  common  delusion  of 
other  insane. 

Delusions  can  also  be  divided  into  the  expansive  and  the 
depressive,  and  into  the  fixed  and  the  variable,  according  to  their 
duration.  Both  the  systematized  and  unsystematized  delusions 
may  be  held  by  an  insane  person  for  a  longer  or  shorter  period. 
A  delusion  that  can  be  skillfully  argued  about  (the  systematized 
one)  can  be  fixed  or  exchanged  for  others  of  the  same  class,  and 
systematized  variable  delusions  may  be  each  in  turn  maintained ; 
but  the  rule  is  that  such  ideas  are  long-lived,  and  therefore  fixed. 
The  unsystematized  notions  of  the  insane  may  be  fixed,  or  exist 
for  quite  a  while,  as,  when  a  maniac  harps,, for  a  week  or  so, 
upon  one  subject.  This  fixation  for  the  time  does  not  consti- 
tute the  delusion  a  systematized  one,  for  no  attempt  to  explain 
why  this  one  subject  is  uppermost  is  made  by  the  insane  mind, 
and  therefore  this  fixed  delusion  is  unsystematized.  The  delu- 
sions of  delirious  states  are  rapidly  variable,  as  they  are  in  sev- 
eral other  forms  of  mental  derangement. 

A  genuine  delusion,  or  one  that  is  the  direct  result  of  the  in- 
sanity, differs  from  the  spurious  delusion,  which  has  been  adopted 
from  another  insane  person.  The  imitative  tendencies  of  the 
insane,  and  the  effect  of  mental  contagion,  are  noticeable  in  such 
communications  of  delusions  as  occur  infolie  d  deux.  The  insan- 
ity of  twins,  however,  appears  to  be  merely  the  operation  of  like 
causes  producing  like  effects  which  sometimes  amount  to  almost 
identical  delusions,  even  when  the  two  are  separated. 

Mere  absurdity  of  a  delusion  is  no  test  of  any  kind  of  insanity, 


SYMPTOMS.  51 

for  an  apparently  logical  process  may  result  in  an  absurd  conclu- 
sion, while  poor  reasoning  may  arrive  at  a  more  sensible  deduc- 
tion, in  both  sanity  and  insanity. 

The  health  has  often  much  to  do  with  the  nature  of  a  delusion, 
as  expansive  or  depressive.  Sickliness  sometimes  induces  the 
latter,  though  not  always. 

Among  expansive  delusions  are  those  of  mania  and  paretic 
dementia,  based  upon  the  feeling  of  being  well,  and  insanely 
interpretated  as  magnificence,  great  strength,  towering  height, 
vast  wealth,  etc.  The  hypochondriac  and  melancholiac  suffer 
from  depressive  delusions  relating  to  their  bodily  parts, — as, 
that  they  are  absent, — to  sinfulness,  unworthiness ;  and  the  per- 
secutory delusions  of  the  paranoiac,  alcoholic,  and  others  refer  to 
enemies  and  their  plots. 

A  fixed  idea  that  one  has  lost  every  friend  is  an  incipient  form 
of  depressive  delusion,  common  to  several  insanities. 

Further  subdivision  of  delusions  can  be  made  into  the  religious, 
erotic,  ambitious,  political,  grand,  persecutory,  suspicious ;  and 
into  those  relating  to  poisons,  unworthiness,  having  committed 
the  unpardonable  sin,  and  to  the  effect  that  the  patient  is  not  fit 
to  live,  that  conspiracies  or  plots  exist,  etc. 

Delusions  concerning  identity  take  the  form  of  a  belief  that 
the  old  self  has  been  replaced  by  a  new  one.  Hack  Tuke  tells  of 
a  patient  who  hunted  under  the  bed  for  his  lost  self.  The  old 
and  the  new  self  may  alternate,  or  both  may  coexist  in  the  insane 
imagination,  and  the  patient  will  assert  that  he  is  two  persons. 

Hypochondriacal  delusions  sometimes  relate  to  a  change  of 
sex,  or  induce  the  belief  that  parts  of  the  body  are  made  of  iron, 
putty,  or  glass ;  that  the  bowels  are  gone,  the  head  is  off,  or  it  is 
too  big  to  pass  through  a  door.  Some  victims  are  restrained 
from  moving  for  fear  their  great  strength  will  cause  the  house  to 
fall ;  others  claim  that  the  penis  is  15  miles  long,  etc. 

The  arrant  nonsense  that  some  paranoiacs  can  gravely  believe 
regarding  their  importance  is  astonishing.  One  will  think  that 
all  the  preachers  in  the  world  aim  their  sermons  at  him,  or  that 
most  personal  advertisements  refer  to  him ;  and  others  may  think 
that  the  hostility  or  favorable  interest  of  kings,  millionaires, 
or  beautiful  or  noted  women  attends  them,  that  they  are  the 
"chosen  of  God,"  and  that  the  earth  and  all  nature  watches 
them. 


52  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

Definite  or  indefinite  persecutory  delusions  may  either  of 
them  prompt  acts  dangerous  to  others ;  for  the  exceedingly  com- 
mon suspicious  or  persecutory  delusion,  and  the  belief  that  injury 
is  intended  or  done  to  them  may  lead  the  definitely  deluded  one 
to  retaliate  upon  the  fancied  source  of  his  ill  treatment. 

Delusions  of  ill  treatment  by  a  class  of  persons  induces  the 
singling  out  of  some  one  of  that  class ;  for  example,  if  soldiers 
are  the  supposed  persecutors,  then  an  officer  may  be  attacked  by 
the  insane  person.  In  the  political  delusion  of  persecution  some 
official,  or  even  the  head  of  government,  may  be  slain.  When 
the  belief  is  that  lawyers  have  conspired  against  the  lunatic,  a 
judge  may  be  shot  at. 

Occult  influences,  such  as  electricity,  telephones,  telegraphs, 
maguetism,  hypnotism,  when  insanely  assigned  as  causes  of  per- 
secution, lead  to  the  search  for  the  one  who  is  responsible  for 
them ;  or  something  desperate  may  be  accomplished  "  to  draw 
attention  to  his  case,  in  the  hope  of  redress ; "  or  such  unfortu- 
nates may  be  raised  to  a  blind  fury  against  everyone. 

Previous  religious  prejudice,  which  is  often  so  strong  with  the 
sane,  may  be  reversed,  and  the  priest,  who  was  formerly  rever- 
enced, may  be  attacked  by  the  insane  as  the  originator  of  his 
troubles. 

The  accusations  of  the  insane  against  themselves  and  others 
should  not  be  accepted  carelessly  as  being  grounded  in  fact,  as 
has  too  often  been  done.  Kor  should  it  be  considered  dis- 
proof of  insanity  that  facts  are  the  groundwork  of  the  insane 
complaints,  for  the  delusion  may  consist  in  facts  being  contem- 
plated by  a  diseased  imagination. 

!No  classification  of  insanity  can  be  based  upon  the  character  of 
delusions,  for  one  form  of  insanity  may  entertain  several  kinds 
of  delusions,  and  many  insanities  may  share  in  common  one  sort 
of  delusion. 

Hallucinations  are  baseless  perceptions  that  may  involve  the 
senses  of  sight,  hearing,  smell,  taste,  and  touch.  The  appearance 
of  the  sun  at  midnight  would  be  an  hallucination  of  sight ;  hear- 
ing the  voice  of  a  dead  friend  is  an  auditory  hallucination ;  a  feel- 
ing as  of  being  pricked  by  multitudes  of  needles  is  a  tactile  hallu- 
cination. Similarly,  the  taste  and  smell  may  be  hallucinated. 
Illusions  are  misinterpreted  sensations,  and,  similarly  with  hal- 


SYMPTOMS.  53 

lucinations,  may  engage  any  of  the  senses.  If  everything  one 
eats  tastes  like  butter,  or  all  that  is  smelled  appears  to  be  decayed  ; 
if  the  ticking  of  a  clock  sounds  like  spoken  words ;  and  a  stranger 
is  mistaken  for  a  friend, — ^illusions  have  occurred. 

Both  hallucinations  and  illusions  are  compatible  with  sanity, 
for  erroneous  or  misinterpreted  sensations  may  be  experienced  by 
anyone.  When  such  false  impressions  are  believed  to  be  true 
ones,  then  a  delusion  is  the  outcome ;  or  a  delusion  may  precede 
and  appear  to  originate  an  hallucination. 

Hallucinations  and  illusions  are  nothing  but  morbidly  intense 
memories.  What  we  experience  through  the  senses  is  recognized 
by  a  certain  vividness  of  impression,  and  in  the  exercise  of  mem- 
ory these  registered  sensations  are  repeated  in  a  fainter  manner. 
In  recalling  a  scene,  for  example,  a  faint  mental  picture  is  usu- 
ally represented  by  the  vicual  memory  ;  and  in  thinking  of  words 
that  have  been  spoken  a  similarly  faint  mental  reproduction  of 
the  sounds  constitutes  the  activity  of  the  auditory  memory.  If, 
however,  instead  of  a  faint  reproduction  there  are  startlingly 
strong  ones,  the  recollections  that  were  practically  inaudible  and 
unseen  become  whispers  or  shouts,  and  images  appear  with  life- 
like definition.  The  hallucinated  person  may  deny  that  the 
apparition  or  false  voices  are  anything  with  which  he  was 
previously  familiar,  but  for  that  matter  ordinary  thought  may 
take  unaccountably  grotesque  directions,  in  any  mind.  "  There 
is  nothing  in  the  intellect  that  has  not  reached  it  through  the 
senses,"  is  a  saying  as  old  as  Descartes,  and  as  true  as  other 
demonstrated  physiological  facts;  therefore  hallucinations  and 
illusions  are  merely  morbidly  vivid  memory  reproductions,  no 
matter  how  distorted  such  memories  may  appear  to  be. 

Tinnitus  aurium,  or  ringing,  whistling,  and  similar  noises  in 
the  ear,  are  instances  of  auditory  illusions,  often  due  to  exter- 
nal or  internal  ear  disease,  or  to  faulty  circulation.  A  blowing 
noise  synchronous  with  the  pulse  is  caused  by  an  aneurism  of 
some  blood  vessel  in  the  brain.  But  if  such  false  sounds  become 
defined  into  music  or  voices  the  brain  substance  itself  is  the  seat, 
of  the  disorder.  Such  noises  may  be  hardly  discernible  whis- 
pers, or  maybe  surprisingly  loud.  They  may  afflict  only  one  side 
of  the  head,  seeming  to  be  spoken  into  one  ear.  Often  the 
voices,  instead  of  appearing  to  proceed  from  the  external  world, 


54  MEDICAL    JURISPRUDENCE   OF    INSANITY. 

are  recognized  as  originating  within  the  person  ;  from  the  chest 
or  abdomen,  or  from  particular  parts  of  the  head.  The  halluci- 
nations are  often  located  back  of  and  above  the  left  ear,  in  the 
brain,  or  in  other  brain  parts.  The  expression  of  such  halluci- 
nated person  is  peculiar,  his  eyes  are  often  fixed  as  though  trying 
to  concentrate  his  listening,  and  he  may  laugh  at  or  answer  the 
voices  he  hears.  Musicians  are  more  apt  to  hear  music,  and  art- 
ists to  see  landscapes  or  images,  the  microscopist  to  have  hallu- 
cinations of  desmids,  diatoms,  or  histological  tissues ;  exactly  as 
dreams  are  compounded  of  more  or  less  coherent  experiences  of 
the  dreamer.  The  voices  may  be  friendly,  annoying,  or  even 
threatening ;  one  side  may  seem  to  hear  one  kind  of  communica- 
tions and  the  other  side  a  different  sort,  amounting  to  conversa- 
tional contests,  in  some  hallucinated  persons,  between  a  friendly 
and  a  hostile  influence. 

The  danger  of  auditory  hallucinations  arises  from  their  liability 
to  become  mandatory,  as  when  commands  are  heard  to  kill  oth- 
ers, or  to  commit  suicide. 

An  alcoholic  may  hear  the  foulest  imprecations  of  himself,  or 
by  day  and  night  the  advice  to  destroy  his  wife,  finally  rising  to 
an  unceasing  din  of  repetitions  of  "  Kill  her !  kill  her !  kill  her !" 
Such  distressing  hallucinations  have  coexisted  with  otherwise 
apparent  sanity  for  long  periods,  though  it  is  readily  seen  how 
a  mind  could  break  down  under  such  a  strain.  , 

An  intelligent  merchant  described  his  sight  hallucinations  (oc- 
casioned by  the  effect  of  a  head  injury  when  a  child)  as  consisting 
in  the  most  realistic  appearances  of  persons  who  were  thousands 
of  miles  away,  or  long  since  dead.  He  stated  that  the  minutest 
details  of  feature  and  dress  were  to  be  seen  in  such  apparitions, 
and  that  he  distinguished  their  unreality  only  through  reason- 
ing. Gradually  the  images  grew  less  distinct,  and  finally  failed 
to  appear. 

The  time  and  country  in  which  the  hallucinated  person  lives 
will  determine  much  of  the  character,  and  afford  an  explana- 
tion of  the  appearances  or  voices.  Formerly  witchcraft  ran  riot 
as  an  assigned  cause  or  subject  of  the  false  perceptions ;  electricity 
is  the  favorite  explanation  by  the  ignorant  of  our  time. 

Epileptic  attacks  are  sometimes  heralded  by  auditory  or  visual 
impressions  of  the  kind;  one  sufferer  alwaj-s  saw  a  little  old 


SYMPTOMS. 


55 


woman  in  a  red  cloak,  another  a  battle  scene;  a  young  man,  he- 
fore  his  spasms  of  petit  or  grand  mal,  had  a  vivid  mental  repre- 
sentation of  a  village  Sunday,  with  his  friends  going  to  church. 

S.  Weir  Mitchell'  mentioned  the  frequency  of  hallucinatory 
troubles  of  amputation  patients. 

Hallucinations  of  sight  are  common  for  a  long  while  after  re- 
covery from  puerperal  convulsions,  unreal  personages,  sometimes 
hostile,  distress  the  waking  vision.  Lice,  bugs,  and  flies,  are  per- 
sistent among  others,  and  the  hallucinations  of  delirium  tremens 
are  notorious. 

The  melancholiac  misinterprets  the  anxious  watching  of  friends 
into  unfriendly  demonstrations,  and  the  frequent  mistakes  of 
identity  by  the  mentally  afflicted  are  common  instances  of  in- 
sane illusions. 

The  phenomena  of  refraction  and  perspective  abound  in  illu- 
sions for  everyone.  The  mirage  is  an  illusion  familiar  to  travel- 
ers.    Lovers  see  beauty  where  it  does  not  exist. 

Physical  conditions  attending  insanity  may  be  merely  coin- 
cident, or  such  as  are  frequently  associated  with  states  of  mental 
disease ;  and  in  a  minority  of  cases  there  may  be  physical  symp- 
toms of  insanity. 

The  attitude  at  times  is  a  consequence  of  brain  irritation  or 
alteration,  as  when  constrained  positions  are  maintained.  The 
arms,  hands,  feet,  legs,  head,  or  facial  muscles  may  be  contorted 
according  to  the  portion  of  the  cerebrum  or  spinal  cord  influ- 
enced. Awkward  positions  of  all  kinds  are  noticeable  among  the 
chronic  cases.  The  advanced  terminal  dements  usually  sit  upon 
the  floor  with  bowed  bodies  and  with  the  coat  or  dress  drawn 
over  the  head.  The  strut  of  pride,  timidity  of  melancholia,  com- 
placency of  paretic  dementia,  furtive  watchfulness  of  paranoia, 
fatuity  of  imbecility,  restlessness  of  mania,  and  the  total  lack  of 
energy  in  stuporous  states,  can  be  distinguished  as  characterizing 
the  appearance  and  movements  of  the  insane. 

There  are  occasionally  paralyzed  or  partially  paralyzed  cases 
among  those  whose  brains  are  structurally  faulty ;  there  may  be 
deformities  such  as  "hump  backed''  individuals  from  spinal  cur- 
vature ;  usually  carious  spines  from  tuberculosis.     An  arm  or  le«" 

1  Injuries  of  Nerves,  352. 


56  MEDICAL   JDR1SPJRUDENCE    OF    INSANITY. 

may  have  failed  to  develop,  and  among  degenerates  the  so-called 
stigmata  are  observable  in  want  of  symmetry  of  the  head,  pro- 
truding lower  jaw,  prow-shaped  forehead,  etc. 

Imperfect  gaits  may  be  due  to  faulty  co-ordination  associated 
with  brain  disease ;  the  ataxic  stagger  of  paretic  dementia  being 
the  most  marked.  Some  patients  refuse  to  move,  or  strike  atti- 
tudes in  obedience  to  uncontrollable  impulses,  as  in  katatonia,  or 
through  the  suggestion  of  delusions.  Automatic-movements  vol- 
untarily or  unconsciously  performed,  as  the  grimaces  of  "tie 
convulsif ;"  catalepsy,  convulsions  (hysterical,  epileptic,  or  apo- 
plectic) ;  many  sorts  of  tremors  or  tremulousness,  spastic  rigidities, 
and  speech  alterations,  are  observed  in  the  asylum  wards.  The 
mechanical  reflexes  may  be  normally  exaggerated,  lessened,  or 
absent,  indicating  bodily  conditions  unassociated  with  the  men- 
tal. Some  patients  are  mute  either  because  they  cannot  or 
will  not  speak.  A  negro  at  the  county  asylum  had  been  silent 
for  ten  years,  but  finally  spoke  to  warn  persons  of  impending 
danger.  A  phasic  derangements  are  occasionally  found,  and  all 
degrees  of  coherency  and  incoherency  of  speech. 

A  majority  of  the  chronic  and  a  few  of  the  acute  insane 
sleep  quite  well,  but  the  remainder  are  at  least  disturbed  during 
the  night,  as  shown  by  their  mumblings,  mutterings,  and  restless- 
ness; while  a  few  are  absolutely  sleepless  for  amazing  periods. 
Cases  of  prolonged  sleep  are  not  numerous,  except  in  very  enfee- 
bled conditions. 

The  furred  tongue,  associated  with  obstinate  constipation  and 
blotchy  complexion,  is  common  among  depressed  lunatics,  espe- 
cially melancholiacs.  Diarrhoea  is  apt  to  afflict  terminal  dements, 
and  it  helps  to  carry  them  off. 

The  flushed  faces  of  excited  patients,  the  sallowness  of  epilepsy, 
and  the  pallor  of  the  badly  nourished,  are  seen  here  and  there,  and 
few  escape  the  haggard,  aged,  furrowed,  and  wasted  facial  ap- 
pearance, so  common  in  insanity.  Those  who  were  good  looking 
become  as  repulsive  in  appearance  as  the  majority,  and  a  return 
of  comeliness  often  indicates  approaching  convalescence. 

The  insane  odor  is  recognizable  by  anyone  who  has  had  the 
least  experience  with  insanity.  The  altered  secretions  smell 
something  like  a  mouse's  nest,  and  must  be  due  to  more  than  a 
bad    breath   and   untidiness,    for  the   sick  in   hospitals   are  not 


SYMPTOMS.  57 

thus  offensive,  and  ordinary  filth  affords  no  such  characteristic 
smell.  When  jails,  reformatories,  and  poor  houses  afford  the  odor, 
it  may  be  reasonably  inferred  that  insane  persons  have  occupied 
such  places.  Sometimes  no  cleansing  can  rid  a  room  of  the  odor 
until  the  patient  has  been  removed,  and  after  many  days  of  ven- 
tilation. 

The  insane  manner  consists  in  oddities  of  behavior  that  attract 
attention  to  the  patient,  and  is  made  up  of  physical  signs  with 
which  the  observant  become  familiar,  covering  a  great  range  of 
activity  or  degrees  of  passivity,  apparent  to  the  student  of  the 
subject. 

The  insane  appearance  consists  in  the  physiognomy  of  insani- 
ty, including  the  animated  expression  of  maniacal  states,  the 
fatuity  of  the  paretic  and  other  dements,  in  their  later  stages ; 
certain  palsied  expressions  in  organic  brain  diseases ;  the  anxious 
look  of  melancholia ;  the  corrugated  brow  of  some  delusional  in- 
sanities ;  the  look  of  insane  terror,  haughtiness,  suspicion,  or  in- 
difference. As  everyone  is  an  unconscious  physiognomist,  and 
reads  the  features  of  others  without  analysis,  but  more  or  less 
accurately,  so  facial  expressions  enable  the  student  of  insanity  to 
recognize  what  can  be  summed  up  as  "  the  insane  appearance." 

The  insane  ear  is  a  noticeable  malady  among  the  trophic  dis- 
turbances in  asylums.  Its  appearance  is  regarded  as  unfavorable, 
though  many  instances  of  full  recovery  after  double  "  hsematoma 
auris  "  are  recorded.  It  is  a  deformity  of  the  ear,  a  puffiness  or 
bloating  of  the  auricle,  such  as  boxers  sometimes  develop.  It 
rarely  occurs  on  the  right  side,  and  then  usually  only  after  the 
left  ear  has  been  previously  affected.  It  is  more  common  among 
the  terminal  dements  than  with  others ;  and  while  it  may 
be  induced  by  injury,  some  perversion  of  the  circulatory  system 
predisposes  to  the  deformity. 

The  circulation  may  be  variable,  between  extreme  rapidity  and 
slowness,  between  tenseness  and  fulness ;  or  the  quantity  indica- 
tions may  be  lessened  in  the  acute  stages ;  and  often,  at  all  peri- 
ods, there  is  an  insufficiency  of  the  circulation,  shown  by  puffiness 
of  members  and  blueness  of  the  lips,  hands,  or  other  parts.  Ex- 
citement in  acute  insanity  accelerates  the  heart  and  pulse  rate,  but 
the  wildest  exhibition  of  the  chronic  insane  is  frequently  attended 
by  a  perfectly  calm  and  regular  pulse.     It  would  seem  as  though 


58  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

the  fury  was  purely  mechanical  in  such  cases,  and  that  the  vital 
processes  had  become  independent  of  the  emotions. 

Sudden  flushings  suffuse  the  faces  of  some  patients  with  irregu- 
larities of  blood  supply. 

Heart  diseases  are  probably  more  frequent  among  the  insane, 
^and  fatty  degeneration  of  that  organ  and  the  arteries  is  also  com- 
mon, creating  a  special  type  of  insanity  called  the  atheromatous, 
when  the  cerebral  blood  vessels  are  thus  degenerated.  Valvular 
troubles  of  the  heart  are  still  more  frequent. 

The  respiration  presents  nothing  special,  beyond  its  correspond- 
ing with  the  general  functional  conditions. 

Lack  of  nutrition  and  tendency  to  rapid  emaciation  characterize 
most  acute  attacks  of  -insanity.  In  the  apathetic  and  chronic 
forms  the  patient  may  become  obese.  It  is  an  unfavorable  sign 
to  acquire  flesh  before  mental  restoration. 

All  sorts  of  organic  and  functional  derangements  of  the  digest- 
ive tract  are  abundant  among  the  insane,  from  cancers  to  dyspep- 
sia; and  much  of  the  indisposition  to  food  is  due  to  such  troubles. 
The  appetite  may  be  at  either  extreme,  from  abhorrence  of  any- 
thing to  eat  or  drink  to  ravenous  gluttony. 

The  secretions  are  altered ;  the  saliva  may  be  excessive,  thick, 
and  turbid,  and  occasionally  both  saliva,  and  tears  may  be  scanty. 
The  perspiration  is  sometimes  superabundant  and  strongly  odor- 
ous, or  absent  altogether,  causing  a  dry  skin.  The  hair  usually 
loses  its  gloss,  and  becomes  harsh  and  erect,"  sometimes  falling 
out.  The  temperature  is  but  little  changed,  as  a  rule,  and  is 
raised  but  slightly  in  excited  states.  A  somewhat  lower  bodily 
heat  attends  most  cases  of  insanity,  due  to  defective  circulation. 
In  delirium  grave  and  also  during  the  "  status  epilepticus  "  there 
is  often  a  very  high  temperature.  Skin  diseases  of  many  kinds 
occur,  and  the  bones  often  become  very  brittle,  and  hence  are  easily 
broken,  especially  in  paretic  dementia.  The  urine  is  scanty  and 
heavy  in  melancholia  and  terminal  dementia,  and  above  the  nor- 
mal quantity  in  mania  and  paretic  dementia. 

Bed  sores  and  sloughs  are  more  liable  among  the  bedridden 
cases  than  in  general  hospitals. 

Asthmatic  attacks  occasionally  alternate  with  insanity  or  its 
exacerbations. 

Cachectic  states,  especially  the  tubercular,  exist  in  a  large  per- 


SYMPTOMS.  59 

rentage,  and  a  large  number  of  insane  succumb  to  consumption  ; 
the  lowered  vitality,  associated  with  mental  impairment,  affording 
but  feeble  resisting  power  against  the  tubercle  bacillus. 

Disturbances  of  sensibilities  consist  most  often  in  a  blunted 
touch  sense.  Anaesthesia  and  absence  of  pain  sense  are  so  ex- 
treme in  some  cases  of  paretic  dementia  that  severe  burning  of 
the  flesh  may  not  be  felt.  Headaches  are  infrequent,  except  in 
syphilis,  which  also  induces  fleeting  pains  about  the  body  and 
limbs. 

Dizziness  and  roaring  noises  in  the  ears  often  afflict  patients 
through  faulty  brain  circulation,  with  fulness  or  a  feeling  of 
pressure,  or  an  empty  feeling  originating  the  idea  that  the  head 
is  too  large  or  that  the  brain  is  gone ;  the  hearing  may  be  de- 
ranged either  through  hallucinations  or  dullness.  The  eyesight 
undergoes  no  alteration  characteristic  of  insanity  although  some 
oculists  earn  large  fees  by  attempts  to  remedy  trivial  or  imagi- 
nary ocular  troubles  with  promises  of  cure  of  the  insanity. 

The  pupils  are  often  enlarged  in  melancholia  as  well  as  in  many 
other  forms  of  insanity,  and  this  dilated  condition  may  be  gen- 
erally regarded  as  indicating  brain  weakness  or  irritation.  In- 
equality of  pupils  is  found  in  most  cases  of  paretic  dementia. 
What  is  called  the  "  arcus  senilis  "  is  a  whitish  rim  around  the 
cornea ;  and  occasionally  fatty  degeneration  of  the  heart  or  ar- 
teries is  associated  with  this  sign  ;  but  the  rugae,  or  ring  like 
feeling,  of  the  carotid  and  radial  arteries  are  better  indications  of 
atheroma.  Faulty  eyesight  due  to  atrophy  or  cataract  has  no 
special  significance  among  the  insane. 

Over-enthusiastic  gynaecologists  have  failed  to  establish  uterine 
disorders  as  connected  with  insanity,  except  in  a  few  instances 
where  any  sort  of  bodily  complaint  may  aggravate  or  precipitate 
an  impending  attack. 

The  handwriting  may  by  its  tremulousness  merely  denote  the 
nervous  state  of  a  patient.  Thus,  in  mania,  melancholia,  and 
senility,  the  writing  may  be  shaky;  but  the  contents  of  the  writ- 
ing are  of  more  importance  in  indicating  the  nature  of  the 
disorder.  Some  paretic  dements  write  vast  numbers  of  letters, 
usually  setting  forth  their  grandeur  and  gigantic  schemes.  They 
underscore,  capitalize,  and  use  exclamation  points  freely.  Hypo- 
chondriacs  detail   their   miseries   at   great   length.      Sometimes 


60  MEDICAL    JUKISPKUDENCE    OF    INSANITY. 

maniacs  write  volumes  of  good,  bad,  or  indifferent  stuff,  accord- 
ing to  their  ability  or  education.  What  the  insane  person  writes 
may  be  clues  as  to  delusions,  and  in  a  few  instances  may  afford 
the  sole  means  of  determining  whether  the  person  is  insane  or  not. 
Libelous  letter  writing  may  indicate  the  insanity  of  hysteria, 
4he  maniacal  stages  of  the  circular  form,  and  paranoia.  At  the 
climacteric  inordinate  jealousy  may  prompt  a  wife  to  write  scur- 
rilously  and  anonymously  to  her  husband.  Abusive  letters  to,  or 
concerning,  asylum  officials,  are  a  very  bulky  part  of  the  insane  mail. 
There  is  nothing  in  the  writing  of  the  insane  of  a  symptomatic 
nature  beyond  the  fact  that  the  writing  of  anyone  is  a  "  highly 
organized  expression,"  as  Savage  calls  it,  and  likely  to  suffer 
with  nervous  or  mental  derangement. 

Menstruation,  with  its  relation  to  insanity,  is  important  be- 
cause of  the  misconceptions  extant  on  the  subject.  jSorrnal 
menstruation  may  among  vigorous  females  be  attended  with 
no  noticeable  derangement  of  the  health  or  change  in  men- 
tality ;  but  occasionally  women  are  more  or  less  debilitated  at 
the  recurrence  of  menstruation  ;  and  debility,  however  induced, 
is  often  worthy  of  more  regard  than  is  the  mere  physiological 
process. 

Tendencies  to  insanity  are  aggravated  by  such  circulatory 
changes;  nervous  disorders  are  made  worse,  and  craving  for  nar- 
cotics and  stimulants  are  induced  in  some ;  Qven  normal  men- 
struation unsettles  the  mind  of  the  unstable.  Regular  menses  are 
of  importance  to  some  but  not  to  all  women.  Those  with  a  hered- 
ity taint  are  more  likely  to  be  influenced  by  menstrual  irregu- 
larities, such  as  stoppage  or  excessive  flow.  For  that  matter 
hemorrhoids,  or  pruritus,  may  act  as  an  exciting  cause  of  insanity. 
The  cessation  of  the  flow  is  more  often  a  symptom  only  ;  and  it  is 
the  rule  during  mania,  melancholia,  and  hysterical  insanity,  for 
the  menses  to  be  absent  and  to  be  restored  upon  recovery  from 
the  mental  disorder.  Patients  who  are  regular  are  often  more 
disturbed  with  each  periodical  return  than  those  in  whom  the 
function  is  absent  altogether ;  and  though  re-establishment  of  the 
flow  accompanies  a  return  of  health,  it  also  occurs  when  the  pa- 
tient is  passing  into  terminal  dementia.  Degenerates  are  more 
likely  to  be  influenced  in  their  insanity  by  menstrual  or  seasonal 
recurrences  than  is  the  normal  person.      When  at  the  climacteric 


SYMPTOMS.  61 

the  menses  cease  altogether,  marked  mental  changes  for  the 
better  often  take  place,  even  to  recovery  from  insanity,  though 
this  epoch  may  mentally  disturb  other  women,  usually  temporarily. 
Excessive  flow  of  menses  may  operate  as  any  other  haemorrhage, 
and  induce  ordinary  melancholia  or  mania,  from  which  in  most 
instances  the  patient  rapidly  recovers,  with  the  correction  of  the 
inducing  causes,  affording  one  of  the  rare  instances  of  pelvic 
trouble  association  with  insanity.  Painful  menstruations  have  no 
greater  connection  with  mental  disorder  than  has  menstruation  in 
general. 


CHAPTER  Y. 

DIAGNOSIS. 

Insanity,  in  most  instances,  is  not  determined  off-hand;  nor 
does  it  consist  in  the  jumble  of  symptoms  imagined  by  the  unin- 
formed. Precisely  as  sicknesses  may  be  told  apart  from  one 
another  by  their  symptoms,  such  as  the  rash  in  scarlet  fever,  the 
pitting  in  smallpox,  the  cough  in  lung  affections,  the  swelling  in 
dropsy,  so  are  the  characteristics  of  mental  disease  separable  into 
distinct  peculiarities  and  groups  of  symptoms,  that  enable  the 
educated  and  experienced  to  name  the  particular  kind  of  insanity, 
and  to  estimate  the  probable  results  of  the  affliction.1 

Visits  have  been  made  to  insane  asylums  by  inexperienced  per- 
sons without  discovering  a  single  appearance  or  hearing  anything 
that  agreed  with  their  preconceptions  of  insane  behavior  or  con- 
versation. Not  only  casual  visitors,  but  officers  of  the  institution,. 
who  have  resided  there  for  years,  are  often  unable  to  distinguish 
at  a  glance  patients  from  attendants  without  uniforms.  This  is 
worth  considering  when  opinions  are  given  upon  insufficient 
examination  of  a  patient,  and  particularly  in  the  absence  of  a 
proper  history  of  the  case,  and  when  there  is  the  obscurity  that 
accompanies  so  many  instances  of  insanity. 

Other  things  being  equal,  the  alienist  is  better  able  to  distinguish 
insanity  than  others  who  are  not  trained  to  observe  it ;  and  it  is 
common  for  asylum  physicians  to  observe  imbeciles,  paretic 
dements,  and  paranoiacs  on  the  streets,  often  actively  engaged 
in  business.  In  all  probability  calling  attention  to  the  discov- 
ery would  be  attended  with  disagreeable  consequences  to  the 
physician,  and  he  is  usually  wise  enough  to  keep  silent.  The 
most  charitable  construction  that  can  be  put  upon  the  rapacity, 

1  As  the  Comic  Blackstone  has  it:  "  There  is  some  difficulty  in  dis- 
tinguishing real  from  sham  lunacy  ;  for  it  is  not  in  real  life  as  it  is  upon 
the  stage,  where  mad  folks  walk  aboiit  with  wisps  of  straw  sticking  in  their 
hats,  or  carried  in  then-  hands,  to  show  their  insanity.  If  this  practice 
was  generally  adopted  the  public  would  be  much  safer,  for  if  every  lunatic 
were  compelled  to  carry  a  wisp,  it  would  be  seen  that  he  was  a  man  of 
straw,  and  consequently  not  responsible. " 

62 


DIAGNOSIS.  6& 

inordinate  egoism,,  and  disposition  to  subordinate  every  sentiment 
in  life  to  money  making,  by  some  of  our  most  successful  business 
men,  is  that  they  are  mentally  unbalanced ;  and  stigmata  of  de- 
generacy can,  all  too  often,. be  traced  in  them  and  their  families. 
The  extinction  of  such  families  is  occasionally  noticed  as  a  direct 
consequence  of  the  obliterative  tendency  of  nature  in  deviations 
from  a  normal  type. 

The  insane  may  be  the  first  and  only  one  to  recognize  the 
insanity  in  himself.  Hypochondriacs,  who  are  not  insane,  in  the 
usual  sense  of  the  word,  may  fancy  that  they  are,  and  seek  volun- 
tary commitment  to  an  asylum.  Physicians  have  recognized 
their  own  approaching  mental  break  down,  and  also  sought  such 
seclusion. 

Aside  from  the  difficulties  in  the  way  of  promptly  ascertaining 
the  kind  of  insanity,  the  question  as  to  whether  insanity  does 
or  does  not  exist,  whether  the  person  is  sane  or  insane,  is  occa- 
sionally not  easy  to  answer. 

A  positive  diagnosis  of  actual  insanity,  and  even  of  the  kind  of 
mental  derangement  in  some  patients,  may  often  be  declared  at 
once,  and  others  may  be  classified  after  a  little  observation ; 
while  still  others  may  require  considerable  watching  and  more 
than  partial  information  as  to  their  acts  and  antecedents  :  and 
there  will  always  be  a  minority  who  will,  with  the  utmost  en- 
deavor, not  only  be  difficult  to  diagnose  differentially,  as  in 
determining  precisely  the  kind  of  insanity,  but  whose  very  insan- 
ity will  remain  in  doubt.  Much  of  this  doubt  is  due  to  an 
insufficient  history  of  the  case. 

Apparent  sanity  occurs  in  the  remission  or  intermission  of  some 
cases,  andin  lucid  intervals.  Real  recovery  may  have  been  es- 
tablished when  the  patient  is  for  the  first  time  under  intelligent 
examination. 

The  ordinary  sick  person  facilitates  examination  by  the  phy- 
sician, while  the  insane  person  seldom  does  so ;  and  many  of  the 
difficulties  experienced  in  treating  children  are  encountered  by 
the  alienist  in  deciding  as  to  the  nature  of  the  insanity  or  its 
existence. 

*  The  history  of  the  case  should  be  full,  as  to  the  heredity,  pre- 
disposition, former  diseases,  or  head  injury,  and  concerning  the 
use  of  alcohol  or  other  drug  addictions.     A  previous  attack  of 


64  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

insanity  should  be  known  ;  whether  there  has  been  any  character 
change,  and  in  what  way. 

The  presence  of  hallucinations,  illusions,  or  delusions,  and  their 
character,  may  assist  the  diagnosis,  The  behavior  of  the  patient, 
peculiarities  about  his  person  and  surroundings,  his  conversation, 
and  whether  his  intellect  is  abnormally  active  or  is  defective, 
should  be  considered.  Hallucinations  and  delusions  may  be  so 
outrageously  absurd  as  to  be  justly  considered  the  products  of  a 
diseased  mind,  particularly  when  better  evidences  of  insanity 
exist ;  but  it  must  be  remembered  that  a  delusion  may  be  in  all 
respects  like  the  error  of  a  sane  person.  Mendel,1  in  remark- 
ing that  "  an  idea  may  also  be  correct  and  objectively  true,  but  nev- 
ertheless be  a  delusion,"  relates  an  instance  of  paranoia,  from  the 
uneducated  classes,  who  insisted  that  he  had  a  tape-worm  in  his 
head,  and  upon  his  death  embryo  tape-worms  were  actually  found 
in  the  ventricles  of  his  brain.  Some  tape-worms  that  he  knew 
were  in  his  intestines  suggested  their  location  in  his  head.  He 
had  insanely  interpreted  certain  feelings  in  his  head,  though  their 
origin  had  been  correctly  guessed. 

The  emotional  condition  should  be  examined  for  excitability, 
abnormally  painful  or  cheerful  states,  or  perversion  or  the  entire 
absence  of  emotion.  The  conditions  of  the  memory  and  con- 
sciousness are  of  prime  importance. 

The  acts  and  speech,  with  regard  to  changes  in  the  latter,  the 
ability  to  read  and  write  correctly,  are  worth  considering. 

Eccentricity  is  a  term  so  all  comprehensive  that  alone  it  would 
not  justify  a  decision  where  sanity  is  in  question.  Character 
asymmetry  may  include  insanity,  criminality,  or  what  would  usu- 
ally be  accepted  by  any  community  as  sanity. 

The  color  of  the  hair  amounts  to  nothing,  beyond  the  fact  that 
o-ray  hair  may  rapidly  appear  in  some  acute  cases,  and  that  the 
chronic  insane  preserve  the  hair  color  in  age  better  than  sane  per- 
sons do. 

"Women  with  hair  on  their  faces  are  often  noticed  in  asylums, 
and  are  said  to  be  more  frequent  than  among  an  equal  number  of 
the  sane  population. 

The  sudden  attack  by  and  recovery  from  insanity  are  so  fre- 

1  Tuke,  op.  cit.  375. 


DIAGNOSIS.  65 

•quently  characteristic  of  degeneracy  that  a  slow  beginning  and 
ending  of  a  mental  trouble  give  much  more  cause  for  hope  of  a 
cure. 

The  letter  writing  of  patients  may  be  guides  to  the  commence- 
ment and  termination  of  attacks. 

In  the  early  stages  many  mental  disorders  may  resemble  one 
another ;  and  melancholic  states  may  precede,  for  some  time, 
greatly  diverse  forms.  Stomach  troubles  very  often  precede  and 
accompany  melancholia. 

Examining  physicians  for  insurance  companies  should  inform 
themselves  so  as  to  be  able  to  recognize  paretic  dementia,  for 
such  patients  are  quite  likely  to  be  regarded  as  good  risks,  and 
they  readily  accept  invitations  to  take  out  policies. 

Menstrual  reinstatement  is  of  favorable  prognosis  if  the  mind 
is  clearing  up  at  the  same  time ;  but  this  physical  improvement 
also  occurs  when  mental  disease  is  incurable. 

Mere  reputation  of  insanity  is  of  no  consequence  in  diagnosis, 
for  it  often  attaches  unjustly,  and  the  people  are  so  ignorant  as  to 
nearly  all  that  pertains  to  mental  disorder  that  they  hold  the 
vulgar  notion  that  when  anyone  has  been  once  insane  he  must 
always  be  insane.  Every  act  of  the  one  who  is  said  to  have  been 
insane  is  scrutinized  suspiciously  by  the  public,  and  mere  physical 
feebleness  has  been  mistaken  for  symptoms  of  insanity  in  many 
cases.  The  vesanias,  such  as  melancholia  and  mania,  are,  for  the 
most  part,  so  free  from  after-effects  that  such  diseases  are  even 
less  liable  than  typhoid  fever,  measles,  or  scarlatina,  to  have 
sequelae. 

Anomalies  of  sleep  or  epilepsy,  found  to  exist  in  suspected 
cases,  may  clear  up  diagnosis. 

There  may  be  great  diversity  of  opinion  concerning  notorious 
cases,  as  in  the  absence  of  exact  information  concerning  the  symp- 
toms of  insanity  the  public  may  fail  to  observe  anything  extraor- 
dinary in  the  conduct  of  the  patient.  The  widely  known  Amer- 
ican Crow  Bar  Case  is  an  illustration.  Dr.  G.  H.  Fuller,  of 
Buda,  Illinois,  a  while  before  his  death,  in  1895,  told  me  that  he 
| was  acquainted  with  Phineas  Gage  at  Cavendish,  Vermont,  who, 
while  working  on  the  Central  Vermont  Railway,  had  a  tamping 
jiron  blown  through  his  head,  while  engaged  in  tamping  a  blast 
n  a  rock.  Subsequently,  in  1849,  Dr.  Fuller  met  Gage  peddling 
5 


66  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

pumps,  and  failed  to  notice  anything  peculiar  about  his  behavior,, 
except  that  he  was  irritable  at  times  and  drank  hard.  He  was 
last  seen  by  the  doctor  in  1851,  and  then  he  appeared  to  be  reck- 
less, and  afraid  of  nothing ;  previously  he  had  been  rather  timid. 
Gage  remarked  that  had  he  known  at  the  time  how  badly  he  was 
-hurt  he  probably  could  not  have  survived. 

The  symptomatology  of  traumatic  insanity  was  not  known  at 
that  time  sufficiently  to  secure  accurate  observation  with  reference 
to  such  matters ;  and  the  fact  that  the  traumatic  insane  may  ap- 
pear to  be  sane  to  the  uninformed,  together  with  the  sensational 
desire  to  be  able  to  affirm  that  it  is  possible  to  have  a  great  hole 
in  the  brain  and  yet  be  intact  mentally,  sufficed  to  give  Gage  the 
undeserved  reputation  of  sanity. 

"When  a  patient  is  observed  to  be  cherishing  worthless  articles, 
to  be  gathering  bits  of  glass,  scraps  of  paper,  rags,  and  valueless 
things  generally,  hiding  them  away,  or  stuffing  the  pockets  and 
the  bosoms  of  dresses  with  such  trash,  the  prospects  are  very  poor 
for  recovery,  for  it  heralds  the  approach  of  what  Hammond  calls 
the  "  graveyard  of  the  mind," — terminal  dementia. 

Lucid  intervals,  particularly  such  as  characterize  the  remis- 
sions or  apparent  recoveries  of  paretic  dementia,  and,  in  fact,  in 
any  form  of  insanity,  give  no  warrant  for  believing  that  the 
affection  itself  entirely  disappears  with  the  symptoms  that  arise 
from  it.  Organic  disease  may  exist  without  producing  its  usual 
symptoms,  but  in  the  interim  of  more  obvious  insanity  some  in- 
dications of  the  past,  and  probable  future,  cling  to  the  patient. 
In  ague  a  great  contrast  exists  between  the  paroxysms  and  the 
subsequent  stage,  yet  all  will  acknowledge  that  the  person  has 
ague  in  his  system.  An  epileptic  is  none  the  less  such  during  his 
freedom  from  attacks.  A  recovery  from  delirium,  mania,  melan- 
cholia, or  transitory  frenzy,  is  complete  when  it  occurs,  and  even 
a  relapse  with  the  recurrence  of  the  original  causes  does  not 
negative  this  assumption;  in  this  respect  the  vesanias  are  com- 
parable to  smallpox  or  typhoid  fever,  which  may  occur  twice  in 
the  same  individual,  but  the  person  is  none  the  less  free  from 
disease  in  the  interval.  With  degenerates,  however,  the  maniacal, 
melancholic,  or  other,  insanity  is  merely  an  episode,  and  in  the 
periods  between  the  acute  stages  the  nervous  and  mental  debase- 
ment of  degeneracy  persists,  as  does  the  physical  stigmata  with 
which  it  is  so  frequently  associated. 


DIAGNOSIS.  67 

Haslam,1  an  old,  but  none  the  less  valued,  writer  on  such  sub- 
jects, states  that  "as  a  constant  observer  of  this  disease  for  more 
than  twenty-five  years  I  cannot  affirm  that  the  lunatics  with  whom 
I  have  had  daily  intercourse  have  manifested  alternations  of  in- 
sanity and  reason.  They  may  at  intervals  become  more  tranquil, 
and  less  disposed  to  obtrude  their  distempered  fancies  into  notice. 
For  a  time  their  minds  may  be  less  active,  and  the  succession  of 
their  thoughts  consequently  be  more  deliberate ;  they  may  en- 
deavor to  effect  some  desirable  purpose  and  artfully  conceal  their 
real  opinions,  but  they  have  not  abandoned  nor  renounced  their 
distempered  notions.  It  is  as  unnecessary  to  repeat  that  a  few 
coherent  sentences  do  not  constitute  the  sanity  of  the  intellect, 
as  that  the  sounding  of  one  or  two  notes  of  a  keyed  instrument 
could  ascertain  it  to  be  in  tune." 

The  principle  of  law  which  holds  the  civil  responsibilities  of 
the  insane  to  be  unimpaired  during  the  lucid  intervals  may  be 
justified  by  theory,  and  also  be  frequently  found  warranted  by 
subsequent  events ;  but  even  with  the  best  of  proofs  that  a  restora- 
tion of  the  mind  to  its  former  state  has  taken  place  in  this  lucid 
interval,  time  and  again  it  happens  that  insanity  has  not  only 
been  latent,  but  insufficiently  observed,  and  great  wrongs  to  per- 
sons and  property  constantly  follow  the  restoration  of  civil  rights 
to  those  who  enjoy  the  so-called  lucid  intervals. 

Lord  Thurlow,2  in  a  chancery  case,  stated  that  "by  a  perfect 
interval,  I  do  not  mean  a  cooler  moment,  an  abatement  of  pain 
or  violence,  or  of  a  higher  state  of  torture,  a  mind  relieved  from 
excessive  pressure ;  but  an  interval  in  which  the  mind,  having 
thrown  off  the  disease,  had  recovered  its  general  habit." 

But  he  further  remarked :  "  The  evidence  in  support  of  the 
allegation  of  a  lucid  interval,  after  derangement  at  any  period 
has  been  established,  should  be  as  strong  and  demonstrative  of 
such  fact  as  when  the  object  of  the  proof  is  to  establish  derange- 
ment." 

In  Cartwright  v.  Cartwright 3  it  was  held  by  Lord  Wynne  that 
a  boisterous  maniac  who  wrote  a  will  while  violently  agitated 

1  Medical  Jurisprudence  as  it  Kelates  to  Insanity,  224. 
8  Atty.  Gen.  v.  Parnther,  3  Bro.  Ch.  Ul. 
s  Phillim.  90. 


68  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

must  have  had  a  lucid  interval  at  the  time,  as  the  will  made  a 
natural  and  consistent  distribution  of  her  property,  and,  in  short, 
"  it  was  a  rational  act,  rationally  done,"  and  from  this  he  inferred 
that  she  must  have  been  visited  by  a  lucid  interval  at  the  moment 
of  making  the  will.  "  For,"  said  the  court,  "  I  think  the  strongest 
-and  best  proof  that  can  arise  as  to  a  lucid  interval  is  that  which 
arises  from  the  act  itself ;  that  I  look  upon  the  thing  to  be  first 
examined ;  and  if  it  can  be  proved  and  established  that  it  is  a 
rational  act  rationally  done,  the  whole  case  is  proved."  Rational 
conversation  of  a  maniac  would  also  constitute  a  lucid  interval, 
according  to  the  same  judge. 

Testamentary  capacity  was  thus  confounded  with  a  lucid  inter- 
val, as  one  and  the  same  thing.  "While  the  former  may  have 
existed,  the  latter  was  by  no  means  proved.  A  chronic  maniac, 
such  as  the  testatrix,  could  not  have  had  a  lucid  interval  any 
more  than  a  remission  could  occur  in  leprosy. 

The  comparison  of  lucid  intervals  to  a  "  temporary  cure,"  when 
based  upon  a  few  rational  acts,  is  improper,  for  most  of  the  insane 
are  capable  of  apparently  rational  acts  which,  when  fully  under- 
stood, are  known  to  be  instigated  by  the  continuance  of  insanity. 
The  "  rational "  acts  and  conversation  of  a  paranoiac  usually  flow 
from  absolute  insanity  ;  and  to  make  what  appears  a  rational  act 
the  evidence  of  a  lucid  interval  would  be  equivalent  to  arguing 
that  temporary  life  was  present  in  a  decayed  corpse. 

The  lucid  interval  has  been  defined1  as  "such  a  restoration 
to  reason  as  will  enable  a  subject  to  comprehend  and  do  an  act 
with  such  reason,  memory,  and  judgment  as  to  make  it  a  legal 
act."  It  might  be  safer,  and  certainly  would  be  more  logical,  to 
recognize  the  validity  of  certain  apparently  rational  civil  acts  of 
the  insane,  when  the  proper  interests  of  all  concerned  are  con- 
served, without  regard  to  the  mental  state  of  the  patient  during 
the  so-called  "  lucid  interval." 

Physicians  know  that  certain  diseases  may  have  remissions, 
and  others  intermissions,  while  relapses  may  occur  in  the  course 
of  convalescence ;  and  that  it  is  the  rule  that  some  ailments  are 
exhausted  and  never  repeat  themselves  in  a  lifetime,  with  occa- 
sional exceptions.     Similarly,  the  alienist  is  able  to  distinguish 

1  11  Am.  &  Ens?.  Cvc.  Law.  112. 


DIAGNOSIS.  69 

apparent  recovery  from  the  actual  recovery,  and  regards  a  large 
number  of  the  periodical  and  degenerate  insane  as  incapable  of 
lucid  intervals,  however  it  may  appear  to  the  inexperienced. 
The  utmost  care  should  be  exercised  in  determining  such  matters, 
to  avoid  injustice ;  though  undeniably  even  degenerates  may  be 
restored  to  the  status  quo  ante,  and  their  acts  have  as  much  va- 
lidity as  it  is  possible  to  assign  to  defectives  in  general ;  for  even 
imbeciles  may  be  entitled  to  property  and  other  rights  if  their 
mental  states  permit,  but  they  are  none  the  less  imbeciles. 

The  position  of  criminal  law  with  regard  to  lucid  intervals  is 
to  be  commended  as  a  redeeming  feature  among  the  many  incon- 
sistencies and  false  principles  which  mark  legal  estimates  of  insan- 
ity. No  one  who  is  admitted  to  be  insane  within  a  short  period 
of  time  before  the  criminal  act  with  which  he  is  charged  is  liable 
to  be  held  to  accountability. 

Concealed  insanity.  According  to  Larroussine  '  "  dissimula- 
tion is  most  common  in  the  severe  and  dangerous  forms  of 
insanity.  Victims  of  persecutory  delusions  conceal  their  thoughts 
in  order  to  be  able  to  work  vengeance  on  their  supposed  enemies ; 
other  lunatics  do  so  in  the  belief  that  their  own  interests  will  be 
thereby  advanced,  or,  and  especially  in  women,  they  are  led  to 
deception  by  a  sense  of  shame.  This  dissimulation  in  the  insane 
is  not  necessarily  limited  to  their  own  interests,  for  they  cause 
other  patients  to  be  as  secretive  as  themselves.  The  dissimulators 
most  inimical  to  society  are  those  subject  to  chronic  persecutory 
insanity.  Great  caution  should  be  observed  before  allowing  these 
patients  to  leave  the  asylum." 

This  ability  to  keep  symptoms  in  the  background  indicates 
considerable  self-restraint,  and  may  lead  the  most  experienced 
observer  astray ;  but  certain  forms  of  insanity,  like  paretic  and 
terminal  dementia,  do  not  admit  of  concealment.  Maniacal  and 
expansive  emotional  states  are  seldom  repressible,  but  in  melan- 
cholia there  may  exist  relative  intellectual  integrity  and  great 
fixity  of  purpose.  Delusions  may  be  hidden  for  months,  and  the 
patient  may  sustain  a  severe  cross-examination  concerning  them, 
and  successfully  lie  on  every  point.  Cheerfulness  may  be  assumed 
to  enable  the  patient  to  commit  suicide.     Some  melancholiacs 

Progrfcs  M^dicale,  1895. 


70  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

seek  sympathy,  and  are  glad  to  confess  their  shortcomings  and 
fancied  unworthiness,  while  others  will  not  talk  about  their  feel- 
ings. 

A  recovery  may  be  mistaken  for  dissimulation,  or  the  latter 
for  the  former.  Healthy  interest  in  surroundings  is  hard  to 
feign,  as  the  self-absortion  of  insanity  is  apt  to  interfere  with  an 
attempt  in  this  direction. 

The  delusions  of  paranoiacs  are  most  apt  to  be  concealed, 
though  the  patient  is  not  so  apt  to  deny  his  delusions  as  to  evade 
answering  questions  concerning  them. 

The  desire  for  liberty  is  the  prime  cause  of  concealment  of  de- 
lusions. Letter  writing  may  reveal  an  insanity  that  exhibits 
itself  in  no  other  way. 

It  is  probable  that  successful  dissimulation  is  frequent,  and 
explains  the  many  so-called  relapses  of  liberated  lunatics,  except 
the  relapses  of  alcoholic  lunatics  caused  by  resuming  the  use  of 
liquor. 

Feigned  insanity.  The  gathering  of  lunatics  into  special  insti- 
tutions, while  affording  physicians  excellent  opportunities  for  the 
study  of  mental  diseases,  debars  the  general  practitioner  from 
familiarity  with  the  peculiarities  of  the  insane,  and  places  him  at 
the  most  disadvantage  when  he  is  called  upon  to  ascertain  whether 
a  person  is  shamming  insanity  or  not. 

The  popular  mistake  that  everything  about  /insanity  is  so  con- 
fused gives  rise  to  the  further  blunder  that  it  is  easily  simulated, 
when,  on  the  contrary,  it  is  most  difficult  to  pretend  insanity 
well  enough  to  deceive  one  who  is  familiar  with  its  symptoms. 
Haslam1  declares  that  "  to  sustain  the  character  of  a  paroxysm  of 
active  insanity  would  require  a  continuity  of  exertion  beyond  the 
power  of  a  sane  person."  Conolly2  affirms  "  that  he  can  hardly 
imagine  a  case  which  would  be  proof  against  an  efficient  system 
of  observation."  Ray3  states  that  "  to  urge,  as  against  the  free 
admissions  of  insanity  in  excuse  for  crime,  the  extreme  difficulty 
of  detecting  attempts  to  feign  it,  can  no  longer  be  anything  more 
than  the  plea  of  ignorance  or  indolence.     The  only  effect  such 

1  Op.  cit.  322. 

2  Indications  of  Insanity,  467. 

3  Op.  cit.  §§  342,  351,  ed.  1853. 


DIAGNOSIS.  i  i 

difficulty  should  have  on  the  minds  of  those  who  are  to  form  their 
opinions  by  the  evidence  they  hear,  should  be  to  impress  them 
with  a  stronger  sense  of  the  necessity  of  an  intimate,  practical 
acquaintance  with  insanity  on  the  part  of  the  medical  witness, 
and  convince  them  that  without  this  qualification  the  testimony 
of  the  physician  is  but  little  better  than  that  of  anyone  else." 

Impostors  adopt  the  most  difficult  form  of  active  insanity  to 
imitate,  and  between  their  clumsy  overdoing  and  the  great  strain 
necessary  to  maintain  the  character,  a  feeble  caricature  is  the 
result ;  particularly  when,  as  is  most  often  the  case,  the  malingerer 
knows  nothing  about  insanity  except  as  he  has  seen  it  represented 
on  the  stage  or  described  in  novels,  by  actors  and  authors  as 
ignorant  of  the  subject  as  himself.  To  prevent  this  assumed  in- 
sanity from  being  overlooked  he  unavoidably  commits  inconsis- 
tencies and  often  breaks  down  and  discontinues  his  efforts.  In 
mania,  memory  and  the  ability  to  recognize  friends  are  even 
better  than  in  health,  whereas  the  pseudo-maniac  will  pretend  to 
have  forgotten  everyone  and  everything.  The  maniac  does  not 
stop  to  consider  what  he  will  do  next,  but  the  pretender  has  to 
cogitate  as  to  his  next  move.  Irrelevant  answers  are  not  common 
with  the  insane,  but  the  pretender  resorts  to  them  as  if  they  were. 
The  real  madman  will  wander  off  to  other  topics,  answer  your 
questions,  or  keep  silent.  If  the  moral  inversion  and  antipathies 
of  insanity  towards  relatives  is  known  to  the  simulator  it  usually 
occurs  to  him  as  an  afterthought  when  he  may  have  previously 
shown  nothing  of  the  sort.  The  proprieties  are  set  at  defiance  by 
the  genuine  maniac,  but  the  pretender  is  careful  not  to  give  what 
he  considers  unnecessary  offense.  A  continued  rapid  pulse  may 
enable  real  mania  to  be  detected,  when  the  acceleration  occurs 
only  in  the  more  active  essays  of  the  one  who  feigns. 

Sleeplessness,  so  constant  and  complete  in  mania,  it  is  impossi- 
ble for  the  simulator  to  maintain.  He  will  fall  off  into  sound 
slumber  in  spite  of  all  endeavors  to  keep  awake  and  rave. 

A  sudden  invasion  of  mania  may  occur  in  one  of  the  degenerate 
type,  but  the  usual  beginning  is  a  slow  one,  marked  by  prodro- 
mal features.  The  pretender  necessarily  begins  his  outbreaks 
when  most  necessary  for  him  to  be  recognized  as  insane.  The 
irritability  of  mania  is  usually  disregarded  in  feigning,  or  a  clumsy 
attempt  at  passion  may  occasionally  be  made.     There  is  a  bold, 


754  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

unflinching  look  in  real  mania,  that  is  not  imitated  by  the  pre- 
tender, who  usually  averts  his  gaze  from  observers. 

Idiocy,  imbecility,  and  senile  dementia  have  been  drawn  upon, 
but  their  imitations  should  be  easily  distinguished  as  such  by  com- 
petent persons. 

*  A  common  method  of  catching  malingerers  is  to  narrate  some 
symptom  as  an  insane  one  that  is  being  looked  for,  and  probably 
the  next  day  it  will  be  forthcoming. 

The  apathetic  forms  of  insanity  would  be  less  difficult  to 
feign,  but  even  with  them  there  are  unfailing  evidences  of  sense 
obtuseness  that  may  not  be  so  accurately  imitated  but  that  resort 
to  cruelty  can  be  avoided  in  deciding  upon  their  absence. 

A  quiet  dementia  would  be  the  easiest  possible  to  copy,  and  the 
most  difficult  to  determine  as  simulated ;  but  the  previous  his- 
tory and  unguarded  acts  would  betray  the  sham.  Similarly,  a 
feigned,  quiet  melancholia  may  be  next  to  impossible  to  detect, 
though  the  physical  evidences  of  constipation  and  gastric  distur- 
bances, with  whatever  history  can  be  obtained,  may  be  some  guide: 
but  unfortunately  such  physical  symptoms  are  not  present  in 
all  cases  of  melancholia.  Their  absence,  however,  might  raise  a 
doubt  of  the  genuineness  of  the  insanity. 

M.  D.  Field1  reports  a  case  of  simulation  of  a  stuporous  form 
of  insanity,  with  the  difficulties  encountered  in  its  study,  and  all 
works  on  forensic  psychiatry  narrate  instances  in  general;  but 
the  main  principles  are  more  serviceable  than  the  detailed  ac- 
counts. 

An  intelligent  jailer,  or  his  assistants,  can  be  of  great  value  in 
getting  at  the  truths  in  such  cases,  as  their  statements  of  acts  and 
what  has  been  observed  enable  the  alienist  to  interpret  many 
things  of  importance.  But  in  cases  of  attempts  to  stupidly  manu- 
facture evidence,  the  physician  will  be  misled,  and  justice  may  be 
defeated.     It  is  best  to  scrutinize  such  testimony  carefully. 

Epilepsy  is  frequently  feigned  by  criminals,  often  to  secure 
money  or  commiseration,  or  to  escape  sentence.  The  pallor, 
pupillary  dilation,  and  the  other  regular  phenomena  of  con- 
vulsions cannot  be  entirely  feigned  successfully.  The  criminals 
come  in  contact  with  epilepsy  so  often  that  they  have  opportuni- 
ties for  observation  of  the  disease. 

'Journal  of  Nervous  and  Mental  Disease,  June,  1800. 


DIAGNOSIS.  73 

The  genuine  epileptic  may  also  be  able  to  bring  on  an  attack 
voluntarily,  and  there  are  complications  of  criminality  and 
epilepsy,  other  than  these,  that  present  considerable  difficulty  in 
detection.  It  might  be  well  to  inform  a  suspected  malingerer  that 
real  epilepsy  has  been  instituted  by  its  pretense,  and  such  in- 
formation may  deter  the  simulator  from  further  efforts. 

Bevan  Lewis'  discusses  some  phases  of  epileptic  simulation,  with 
reference  to  medico-legal  points. 

Simulation  of  insanity  by  the  insane  is  thus  summed  up  by  Leon 
Charnel,2  of  Belgium  :  "  In  cases  of  insanity  where  the  intellect- 
ual faculties  are  not  too  much  disordered,  the  insane  may  simulate 
another  form  of  insanity  than  their  own.  The  forms  most  often 
simulated  are,  in  order  of  frequency,  imbecility,  dementia,  and 
mania.  The  other  forms  are  not  as  frequently  simulated.  A 
lunatic  generally  simulates  insanity  to  escape  punishment,  and  an 
expert  physician  should  not,  therefore,  in  such  cases,  be  satisfied 
with  a  diagnosis  of  simulation.  Such  diagnosis  does  not  exclude 
real  insanity,  and  the  physician  should,  therefore,  endeavor  to  as- 
certain whether  or  not  the  simulator  is  himself  a  lunatic.  With 
care,  patience,  and  long-continued  observation,  it  is  possible  to 
make  a  complete  and  correct  diagnosis,  and  this  is  the  more  im- 
portant as  in  these  matters  a  serious  question  of  responsibility 
arises." 

A  common  trick  of  theinsanewho  attempt  a  pretense  of  in- 
sanity is  the  holding  of  their  hands  to  their  heads,  as  though 
suffering  from  headache,  appearing  to  imagine  that  brain  dis- 
turbances of  any  kind  are  attended  with  pains  in  the  head. 

Cases  of  feigned  insanity.  Hastings,  a  paranoiac,  on  trial  for 
the  killing  of  a  real-estate  dealer  named  Hildreth,  in  Chicago,  sat 
in  the  court-room,  looking  at  the  floor,  and  holding  a  hand  to  his 
head  ;  he  drawled  out  his  answers  slowly,  but  always  to  the  point, 
and  pretended  to  be  demented  or  melancholic.  Upon  his  verdict 
of  acquittal  he  at  once  changed  to  cheerfulness,  and  laughingly 
boasted  of  his  success  with  the  "insanity  dodge."  Yet  Hastings, 
was  a  decided  "  phrenasthenic,"  and  his  entire  family  was  badly 
degenerate. 

1  Text  Book  of  Mental  Disease,  246. 

8  BulL  de  la  Soc.  de  Med.  Ment.  de  Belgique,  1895. 


<74  MEDICAL    JURISPRUDENCE   OF    INSANITY. 

Dacey,  who  murdered  alderman  Gaynor  of  Chicago,  was  tried, 
•on  a  change  of  venue,  in  1886,  at  Woodstock,  Illinois.  The  pris- 
oner was  of  the  criminal  politician  type,  and  when  known  to  be 
under  observation  in  his  cell  pretended  to  be  violently  maniacal. 
He  carefully  refrained  from  obscenity,  though  all  his  life  he  had 
*not  been  choice  in  his  use  of  expletives.  He  did  not  attack  any- 
one, and  when  watched  without  his  knowledge  he  quieted  down. 
He  had  many  scalp  wounds  from  fights  in  which  he  had  been 
engaged,  but  no  claim  of  traumatic  insanity  was  raised  on  the 
defense. 

One  physician  claimed  that  he  was  an  insane  man  simulating 
insanity  ;  another  asserted  that  Dacey  had  the  "  maniacal  eye." 
The  doctors  who  appeared  for  the  defense  were  separately  exam- 
ined, without  time  for  consultation  among  themselves,  and  one 
claimed  that  Dacey  was  a  "  maniac  with  depression,"  another  that 
he  had  "both  melancholia  and  mania."  There  were  opinions 
from  other  medical  witnesses  to  the  effect  that  the  prisoner 
was  "  a  chronic  maniac  approaching  dementia,"  and  that  he  was 
"  a  syphilitic  insane  case  with  delusional  insanity."  Dr.  Cronin, 
whose  mysterious  murder  created  such  a  sensation  subsequently, 
was  of  the  opinion  that  Dacey  was  an  imbecile,  but  later  he  re- 
garded him  as  a  case  of  circular  insanity.  He  testified  that  cir- 
cular insanity  and  melancholia  were  identical. 

The  fact  is,  none  of  these  medical  gentlemen  had  more  than 
the  general  practitioner's  familiarity  with  insanity,  and  none  of 
them  had  time  to  study  the  literature  enough  to  form  plausible 
theories. 

Dacey  simulated  an  attack  of  epilepsy  in  the  court-room,  but  it 
was  bunglingly  performed,  and  he  did  not  appear  to  know  about 
the  sleep  periods  that  usually  follow  epileptic  attacks. 

On  the  gallows  he  confessed  to  his  attempts  at  feigning,  and 
showed  regret  for  his  life  of  crime. 

Dr.  Scudder,  in  1892,  was  seen  by  a  servant  girl  in  the  act  of  kill- 
ing Mrs.  Dunton,  his  mother-in-law,  by  beating  her  over  the  head 
with  a  pair  of  heavy  obstetrical  forceps.  Her  skull  was  found  to 
he  fractured.  It  was  in  evidence  that  he  had  treated  Mrs.  Dunton 
for  some  time  during  a  protracted  illness  ;  that  she  had  resisted  a 
hypodermic  injection  which  led  to  the  attack;  and  that  Dr. 
Scudder  had  forged  a  will,  signing  the  name  of  Mrs.  Dunton, 


DIAGNOSIS.  75 

and  during  the  funeral  was  discovered  in  an  attempt  to  secretly 
take  possession  of  the  former  will,  and  stupidly  pretended  that 
the  tin  box  containing  it  accidentally  stuck  to  the  shawl  he  was 
•carrying.  Mr.  Dunton,  the  father-in-law  of  the  prisoner,  nearly 
died  immediately  after  taking  some  medicine  given  to  him  by 
Scudder.  A  sister  of  Scudder  died  under  circumstances  that 
led  to  his  being  accused  of  having  killed  her  with  hypodermic 
medications.  The  first  wife  of  the  accused  also  died  mysteriously 
after  being  insured  for  a  large  amount. 

By  some  adroit  management,  when  Scudder  was  arrested  he  was 
taken  to  the  detention  hospital  for  the  insane,  where  he  began  to 
simulate  mania.  Later  he  was  transferred  to  jail  and  soon  gave 
up  his  too  difficult  methods  of  pretending  insanity.  He  finally 
committed  suicide  by  taking  a  large  dose  of  morphine  that 
had  been  conveyed  to  him.  The  public  interest  in  the  affair 
was  considerable,  and  as  some  acrimonious  newspaper  attacks 
were  made  upon  the  survivors  of  the  Dunton  family  for  the  par- 
pose  of  mitigating  the  atrocity  of  the  murders,  I  was  requested  by 
the  state's  attorney  and  his  assistants  in  the  prosecution  to  pre- 
pare a  report  setting  forth  my  investigations  and  reasons  for  be- 
lieving that  Scudder  was  not  insane.  This  report  is  appended 
as  published  August  13,  1892  : 

"After  having  been  called  upon  by  the  state  in  the  case  against 
Dr.  Scudder  I  noticed  that  when  taken  to  the  detention  hospital 
for  the  insane  he  simulated  mania,  and  claimed  to  have  delusions 
and  hallucinations  quite  inconsistent  with  the  belief  that  he  was 
really  insane.  He  took  pains  to  explain  the  reasons  for  any  ap- 
parent insane  behavior.  For  example,  he  told  Laus,  a  patient  in 
the  hospital :  '  You  are  in  league  with  my  persecutors.'  Simi- 
larly, he  accused  his  father  and  wife  of  being  banded  with  his 
persecutors. 

"  I  have  known  insane  physicians  who  acted  upon  their  delu- 
sions and  hallucinations  without  attempting  to  explain  that  they 
were  laboring  under  a  delusion  and  hallucination,  as  in  this  case. 
When  one  is  insane  the  unreal  is  so  real  to  him  that  he  is  unable 
to  separate  the  two ;  much  less  is  he  able  to  Call  the  attention  of 
bystanders  to  such  difference.  His  assault  upon  Peter  Laus  by 
striking  him  over  the  head  appeared  to  be  an  attempt  to  account 
for  his  attack  upon  Mrs.  Dunton.     Previous  to  his  arrest  nothing 


76  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

similar  occurred ;  his  violent  demonstrations  against  his  wife  and 
father  were  suspicious  as  occurring  only  after  the  murder. 
Watched  through  the  keyhole  of  his  cell  he  appeared  to  be 
rational,  and  with  his  half  knowledge  of  insanity  he  made  the 
mistake  of  adopting  the  occasional  active  form  for  pretense. 
This  is  the  most  difficult  to  sustain  for  any  length  of  time  by  the 
simulator.  Had  he  adopted  the  passive  or  apathetic  method  his 
success  would  have  been  better  assured.  In  the  active  form  he 
committed  inconsistencies  and  betrayed  himself,  owing  to  its 
requiring  more  constant  effort.  He  informed  others  frequently 
that  he  saw  faces  and  heard  voices  in  the  dark,  to  impress  others 
that  he  was  hallucinated.  The  insane  seldom,  if  ever,  do  such 
things. 

"  Until  the  night  of  March  5  Scudder  showed  no  disposition  to 
be  violent  and  his  pretense  covered  many  of  the  forms  of  insanity 
(each  form  of  insanity  has  its  own  separate  symptoms,  and  is  not 
a  jumble  of  symptoms  as  the  uninformed  would  imagine),  and 
his  attacks  upon  his  fellow  patients  appeared  to  be  feints.  His 
opportunities  to  study  insanity  should  be  taken  into  account. 
The  lunatic  with  hallucinations  of  hearing  does  not  explain,  but 
acts.  After  making  the  attacks  he  continuously  repeated,  '  They 
told  me  to  do  it;  it  could  not  be  helped ;  it  had  to  be  done,'  and 
claimed  that  the  '  voices '  told  him  that  Laus  was  in  league  with 
his  wife,  and  therefore  he  attacked  him. 

"  There  was  strong  proof  of  design  in  the  events.  The  forgery 
of  the  will  and  of  checks,  and  the  attempted  deliberate  theft  of 
the  will,  should  be  compared  with  the  subsequent  aimless  assaults 
of  Scudder.  His  manner  of  assaulting  Mrs.  Dunton  and,  attempts 
to  conceal  his  crime  were  quite  different  from  his  subsequent 
open  obstreperousness. 

"He  did  not  claim  that  the  voices  told  him  to  pick  up  the 
shawl  with  the  box  containing  the  will.  He  did  not  try  to  ex- 
plain his  action  in  that  way  at  that  time,  and  it  is  worth  noticing 
that  he  singled  out  Mrs.  Dunton  instead  of  making  aimless  on- 
slaughts on  others,  as  he  did  at  the  hospital.  He  even  withheld 
his  hand  from  the  servant  girl,  Hannah  Johnson ;  he  merely 
glared  at  her  significantly.  He  made  frequent  use  of  the  word 
'persecution,'  as  he  had  probably  read  the  terms  'delusions  of 
persecution'  in  medical  works.     The  insane  do  not  as  a  rule 


DIAGNOSIS.  77 

speak  of  being  persecuted,  even  if  they  have  delusions  of 
persecution. 

"  March  10,  in  the  jail,  Dr.  Scudder  refused  breakfast  and 
dinner,  claiming  that  his  food  was  poisoned,  but  he  took  his  sup- 
per. "When  delusions  of  poisoning  occur  the  insane  seldom,  if 
ever,  mention  it,  but  continue  to  refuse  food  for  months  without 
giving  reasons.  That  the  delusion  should  exist  but  for  a  few 
hours  is  suspicious.  In  a  long  conversation  with  him  in  the  jail 
I  failed  to  discover  anything  but  rational  behavior,  nor  were  there 
any  physical  evidences  of  insanity  apparent  at  that  time. 

"  The  alleged  delusions  of  persecution  were  not  fixed  or  per- 
sistent in  his  case,  as  he  greeted  his  father  and  Dr.  Noble  differ- 
ently at  successive  visits.  He  was  not  a  maniac  or  melancholiac, 
for  his  recovery  in  jail  was  too  rapid.  Paretic  dementia  may  be 
dismissed  for  the  same  reason.  Nor  did  he  suffer  from  paranoia, 
for  he  gave  up  his  delusions  of  persecution,  and  received  the 
family  affectionately  after  having  turned  against  them  previously. 
The  paranoiac  is  continuously,  persistently,  consistently,  and 
usually  ostentatiously  insane,  and  manifests  his  delusions  accord- 
ingly. 

"  The  diagnosis  of  insanity  upon  a  single  instance  of  his  having 
washed  his  hands  at  one  time  is  absurd.  In  '  mysophobia,'  or 
fear  of  contamination,  the  lunatic  is  usually  hopelessly  insane, 
and  the  hand-washing  may  occur  hundreds  of  times  a  day  instead 
of  once,  as  observed  in  this  instance,  and  mysophobia  may  exist 
without  insanity. 

"  It  is  noticeable  that  the  prisoner  slept  fairly  well,  with  few 
exceptions.  It  is  probable  that  traumatic  insanity  was  to  be  the 
main  defense,  based  upon  the  claim  of  a  sunstroke  in  India.  But 
in  this  form  of  insanity  there  are,  in  addition  to  continuous  sleep- 
lessness, persistent  irritability,  complete  change  of  character,  loss 
of  memory,  and  intolerance  to  heat  and  alcohol,  passionate  and 
aimless  outbreaks,  delusions  of  persecution  and  frequent  head- 
aches. When  there  is  a  decided  motive  for  a  pretense  of  insan- 
ity it  is  suspicious  when  each  of  these  separate  symptoms  occurs 
at  widely  different  times.  If  a  man  commits  a  murder  in  Janu- 
ary in  a  deliberate  manner,  and  in  February  has  a  maniacal  attack, 
and  in  March  is  sleepless,  in  April  is  irritable,  and  in  May  drops 
all  his  peculiarities  and  appears  to  be  sane,  traumatic  insanity 
may  well  be  doubted. 


78  MEDICAL    JCRTSPKUDENCE    OF   INSANITY. 

"  Although  apparently  sane  intervals  may  occur  in  the  course  of 
traumatic  insanity,  it  was  quite  remarkable  that  Dr.  Scudder  re- 
gained his  reason  immediately  after  Dr.  Spray  advised  him  to  stop 
the  insanity  dodge.  The  homicidal  attempts  of  most  insane  per- 
sons, especially  those  who  suffer  from  head  injuries,  are  aimless. 
.Although  design  may  be  manifested  by  a  lunatic,  as  a  rnle  in  trau- 
matic insanity  there  is  at  least  insufficient  motive.  I  never  heard, 
as  alleged  in  this  case,  of  a  traumatic  lunatic  forging  a  will  in  his 
own  favor  and  murdering  the  testatrix. 

"  It  is  noticeable  that  where  insanity  is  feigned  a  motive  for 
feigning  always,  and  an  attempt  to  escape  punishment  usually,  ex- 
ists, and  there  is  no  well-authenticated  evidence  of  previous  insan- 
ity ;  that  the  simulator  always  over-acts  his  part,  especially  if 
mania  is  chosen ;  that  acts  are  committed  which  are  incompatible 
with  the  form  of  insanity  assumed ;  that  there  is  an  inability  to 
maintain  the  excitement  without  fatigue  ;  that  there  is  an  inabil- 
ity to  do  without  sleep ;  that  the  pretender  alters  his  behavior 
when  he  thinks  himself  unobserved ;  that  the  imitation  of  the 
form  of  insanity  is  incorrect ;  that  there  is  pretended  loss  of 
memory,  though  this  occurs  in  but  few  forms  of  real  insanity, 
and  that  the  pretender  will  often  say  that  he  is  suffering  from  de- 
lusions, hallucinations,  and  the  like.  An  insane  person  never 
speaks  in  this  way.  Opium  acts  more  powerfully  on  the  simu- 
lator than  on  the  real  lunatic.  Dr.  Scudder  seemed  to  be  quite 
susceptible  to  opiates.  With  pretenders  there  'is  an  absence  of 
objective  symptoms,  such  as  rapid  pulse,  furred  tongue,  flushed 
or  pallid  face,  injected  eyeballs.  Dr.  Scudder  had  none  of  these 
appearances. 

"  The  insane  person  who  commits  murder  usually  does  so  with- 
out a  motive  or  with  a  trivial  or  outlandish  motive.  There  is 
seldom  an  attempt  at  concealment,  and  frequently  there  is  even 
boastfulness  concerning  crime.  The  history  of  insane  or  nervous 
heredity  and  of  conversation  and  conduct  indicates  in  such  cases 
the  existence  of  mental  aberration  before  the  commission  of  the 
crime. 

"  At  the  coroner's  inquest  the  medical  gentlemen  employed  by 
the  defense  were  quite  positive  that  the  post  mortem  brain  appear- 
ances indicated  possible,  though  not  necessary,  insanity.  The 
conditions,  as  described,  have  been  found  in  numberless  instances 


DIAGNOSIS.  7& 

in  perfectly  healthy  brains,  and  those  same  gentlemen  were- 
equally  positive  that  Scudder  had  not  poisoned  himself  with 
morphine,  as  the  symptoms  did  not  indicate  it.  Subsequently 
Dr.  Haines,  of  Rush  College,  found  morphine  in  the  stomach — 
'  morphine  abundantly  present  in  much  larger  amounts  than  even 
the  full  remedial  dose.'  Since  these  gentlemen  were  proved  to 
be  mistaken  in  the  diagnosis  of  the  cause  of  death  in  the  stomach 
matter  as  far  as  the  suicide  is  concerned,  are  they  liable  to  be  in- 
fallible in  their  judgment  of  the  brain  condition  indicating 
insanity  ? 

"  The  simulator  makes  the  mistake  generally  of  allowing  his 
feigned  disorder  to  explode  as  well  as  to  recede  too  rapidly.  The 
crime,  its  motive  when  committed,  and  the  behavior  before  and 
after  the  crime,  are  important  elements  in  the  diagnosis  between 
simulation  and  insanity  in  criminals. 

"  I  am  constrained  to  believe,  after  a  careful  examination  of  all 
the  circumstances,  that  unless  an  undue  appetite  for  money,  which 
too  often  develops  unscrupulous  means  for  obtaining  it,  can  be 
considered  insanity,  Dr.  Scudder  was  not  an  insane  person,  but 
was  simply  the  kind  of  man  with  which  the  early  centuries 
abounded.  In  the  nineteenth  century,  as  a  rule,  hypocrisy  is 
necessary  and  too  often  effective  in  covering  the  tracks  of  such 
men." 


CHAPTEE  VI. 

CRIMINAL  CASES. 

Crime  in  general  can  be  but  superficially  considered  in  a  chap- 
ter which  is  not  "  as  long  as  the  moral  law." 

Of  all  the  sciences  sociology  is  the  most  intricate,  for  it  includes 
all  other  branches  of  human  knowledge,  and  concerns  the  rela- 
tions of  man,  not  only  to  his  fellows,  but  to  the  universe  as  well. 
Yet  offhand  opinions  on  the  most  abstruse  of  these  relations  are 
instantly  given,  with  a  readiness  inversely  proportioned  to  re- 
flection and  profundity.  The  farm-hand  has  infallible  theories  of 
government,  and  occasionally,  when  he  becomes  a  legislator,  puts 
them  to  the  test  in  statutes  which,  while  remedying  minor,  cre- 
ate major  evils.  Sailors  know  what  landsmen  should  do  under 
all  circumstances,  and  landsmen  make  laws  for  the  sailors.  The 
secretary  of  war,  a  civilian  without  military  training,  always 
knows  what  the  generals  in  the  field  should  do  to  win  battles,  and 
the  latter  are  constantly  resenting  such  interference.  The  narrow- 
minded  medical  man  despises  the  law  as  an  empty  system  of 
formalities.  The  lawyer  of  similar  calibre  retorts  with  contempt 
for  the  fallibility  of  medicine ;  the  anarchist  would  substitute 
chaos  for  any  human  attempt  at  order,  and  the  executive  too 
often  resists  the  impediments  in  the  way  of  his  efforts  for  the 
welfare  of  all, — impediments  that  are  grounded  in  an  eternity  of 
causes. 

The  history  of  civilization  shows  that  well-intentioned  reform- 
ers have  often  delayed  progress  in  their  mistaken  zeal ;  for  insti- 
tutions grow,  evolve,  and  cannot  exist  until  the  time  is 
propitious. 

Law  is  a  science  intended  to  minimize  the  confusion  arising  in 
the  settlement  of  disputes,  and  the  grand  intellects  engaged  in 
its  advancement  have  achieved  much ;  but  a  jurisprudence 
founded  upon  a  full  recognition  of  the  advances  made  in  collat- 
eral branches  of  knowledge  will  be  possible  only  in  a  more  intel- 
ligent era. 

SO 


CKIMINAL    CASES.  81 

That  an  army  could  move  only  as  fast  as  its  slowest  member 
was  true  when  military  operations  were  primitive.  The  ambu- 
lance now  assists  the  soldier  somewhat  as  the  substitution  of  prin- 
ciple for  precedent  would  accelerate  the  progress  of  the  jurist, 
with  the  added  analogical  risk  that  the  vehicle  may  be  decrepit 
or  overloaded. 

Lord  Bacon  wrote  :  "  It  were  good,  therefore,  that  men  in  their 
innovations  would  follow  the  example  of  time  itself,  which  in- 
deed innovateth  greatly  but  quietly,  and  by  degrees  scarce  to  be 
perceived."  In  the  main  it  is  fortunate  that  the  law  is  slow  to 
change,  for  otherwise  the  greatest  confusion  would  be  inevitable ; 
but,  on  the  other  hand,  astonishingly  unwarranted  reverence  for 
precedent  abounds  in  the  common  law  and  influences  the  tenor 
of  statutory  law.  But  on  this  point  a  member  of  the  bar  may  be 
quoted.  In  an  address  delivered  before  the  Illinois  State  Bar  As- 
sociation, at  Springfield,  in  January,  1896,  Mr.  James  C.  Courtney 
took  the  ground  that  the  common  law  is  weighted  with  unwise  prin- 
ciples and  provisions  ;  that  the  wisdom  of  the  common  law  has 
been  praised  too  much.  Citing  the  advance  that  has  been  made 
in  every  other  branch  of  science,  he  remarks  that  in  law  the  fool- 
ish conceits  of  our  ancient  ancestors  are  passed  along  from  age  to 
age  as  rules  for  our  guidance  and  enlightenment ;  that  for  ages 
judges  and  lawyers  have  used  such  expressions  as  "  the  com- 
mon law  is  the  embodiment  of  wisdom,"  "  the  perfection  of  reason- 
ing," "  the  greatest  birthright,"  etc.     On  this  point  he  says  * 

"  The  common  law  is  not  the  embodiment  of  wisdom,  neither 
is  it  the  perfection  of  reasoning.  In  the  very  nature  of  things  it 
could  not  be  so.  It  had  its  origin  in  the  usages  and  customs  of  a 
semi-barbarous  age,  and  the  stream  can  never  rise  higher  than  its 
source.  The  common  law  is  an  exponent  of  the  habitudes  of 
life.  It  is  a  creature  of  man's  handiwork,  and  by  consequence  is 
beset  with  man's  imperfections  and  infirmities.  The  virtues  and 
the  vices;  habits  and  customs ;  fads  and  fancies;  the  good  and 
the  bad,  all  colored  by  the  spirit  and  temper  of  the  age, — these  are 
the  component  parts  of  the  common  law,  and  these  are  all  woven 
together  as  warp  and  woof  in  the  great  loom  of  the  people's  life; 
the  fabric  in  its  completion  shows  the  impress  of  each ;  and  this  is 
the  common  law  in  its  entirety.  In  the  formative  periods  of  the 
Common  law,  the  most  excellent  wisdom  and  the  most  profound 


82  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

ignorance  dwelt  in  harmony  together.  The  phantoms  of  igno- 
rance, and  the  hobgoblins  of  superstition,  all  walked  abroad  in  the 
light  of  the  splendid  genius  of  Bacon  and  Shakespeare." 

Then,  admitting  that  there  is  also  much  wisdom  in  the  common 
law,  Mr.  Courtney  says  that  many  of  its  rules,  wise  in  their  ap- 
plication to  the  conditions  which  gave  them  birth,  have,  by  reason 
of  changed  conditions,  become  unwise,  and  that  what  is  needed  is 
reconstruction,  elimination,  and  a  new  arrangement  of  things. 
In  support  of  his  argument  he  notes,  among  other  things,  the  con- 
dition of  the  common  law  with  reference  to  "  seals,"  saying : 

"Many  hundred  years  ago,  when  illiteracy  prevailed  almost 
universally,  when  man  was  just  emerging  from  barbarism  and  the 
gloom  of  superstition  hung  about  him,  and  when  not  one  in  ten 
thousand  could  read  or  write,  the  transmission  of  real  estate  was 
effected  by  livery  of  seisin  and  by  the  grantor  attaching  his  seal 
to  the  parchment.  The  grantor  being  unable  to  write,  this  seal 
represented  his  name,  and,  under  conditions  then  existing,  was  a 
wise  requirement.  But  see  how  a  wise  law  in  its  application  to  con- 
ditions of  a  medieval  age  degenerates  into  folly  in  its  application  to 
the  conditions  of  civilized  age.  First,  waxen  seals  were  neces- 
sary, but  now  our  modern  judges  tell  us  that  zigzag  marks  or 
little  round  dots  will  do.  The  supreme  court  of  Pennsylvania, 
in  Hackees  Appeal,  121  Pa.  204,  1  L.  "JR.  A.  861,  favors  us  with  a 
learned  exposition  of  the  law  on  this  subject.  '  Any  kind  of  a 
mark  after  the  name  that  fancy  may  suggest  is^  sufficient,'  says  the 
learned  court  in  this  case.  And  so  a  little  dot,  the  sixteenth  part 
of  an  inch  in  length,  was  held  by  the  court  to  be  a  good  seal. 
But  the  court  was  careful  to  say  that  a  dot  or  a  wiggle  made  by 
the  pen  after  the  signature  was  necessary.  And  this  blight  in  the 
law  as  to  these  trifles  is  not  alone  confined  to  deeds,  but,  like  a 
baneful  disease,  spreads  about  in  every  nook  and  corner  of 
common-law  jurisprudence.  In  evidence,  sealed  instruments,  like 
a  king,  are  hedged  about,  shielded  from  attack,  and  invested 
with  imperial  importance.  No  matter  how  many  mistakes  the 
writing  may  contain,  no  matter  how  false  it  may  be,  if  there  be 
a  zigzag  mark  of  the  pen  after  the  signature,  the  voice  of  truth  is 
silenced,  and  nothing  can  be  said.  Reference  to  a  case  or  two 
will  yield  good  results  at  this  point.  The  case  of  Hume  v.  Tay- 
lor* 63  111.  43,  is  instructive.     Hume  sold  to  Tavlor  1,000  hogs. 


CRIMINAL    CASKS.  83 

A  written  contract  was  signed  for  the  delivery  of  these  hogs. 
This  contract  had  a  little  mark  after  the  signatures  of  the  parties. 
Each  of  the  parties  signed  a  note  to  the  other  for  $5,000,  and 
placed  it  in  the  hands  of  a  third  party  as  a  guaranty  of  the  per- 
formance of  this  contract ;  but  before  the  time  for  the  delivery  of 
the  hogs  had  arrived,  the  parties  changed  this  contract,  substi- 
tuting 500  hogs  for  1,000,  and  wrote  this  new  contract  on  the 
back  of  the  old  one;  and  each  of  the  parties  signed  his  name  to 
this  new  contract,  and  defendant  offered  to  deliver  the  hogs 
under  the  new  contract.  But  the  supreme  court  held  under  these 
facts  that  the  plaintiff  was  entitled  to  recover  on  the  note  placed 
as  a  guaranty,  for  the  reason  that  the  original  contract  was  not 
changed,  because  there  were  no  marks  after  the  names  of  the 
parties  to  the  new  contract  to  represent  a  seal.  And  so  the  de- 
fendant lost  $5,000  for  the  want  of  a  little  mark  after  the  plain- 
tiff's name. 

"  And  the  rule  in  Shelley's  Case  is  not  a  whit  less  absurd.  The 
facts  of  this  ancient  case  show  that  its  determination  was  based 
on  the  doctrine  of  primogeniture.  One  illustration  :  Once  upon 
a  time  an  old  German  lived  in  Chicago.  He  was  the  owner  of 
certain  lots  in  that  city.  He  was  blessed  with  four  sons,  and 
each  of  these  sons  had  children.  This  old  gentleman,  like  many 
other  grandparents,  was  very  fond  of  his  grandchildren.  With  a 
sound  mind  and  memory  he  writes  his  last  will  and  testament. 
He  wishes  to  give  these  lots  to  his  sons  during  their  life,  and 
after  their  death  he  wants  them  to  descend  to  his  grandchildren. 
So  he  says  :  '  In  the  name  of  God,  amen.  I  give  and  devise  unto 
my  sons  lots  13,  14,  and  15,  in  Chicago,  but  neither  of  them  shall 
sell  or  mortgage  any  of  the  lots,  but  the  same  shall  go  to  their 
heirs  after  them.'  Nothing  could  be  clearer  than  that  this  old 
man  intended  these  lots  to  go  to  the  sons  during  their  lifetime, 
and  that  the  grandchildren  should  take  the  fee  simple.  The  sons 
become  dissatisfied,  and  bring  suit.  The  case  goes  to  the  supreme 
court  of  Illinois.  And  this  will,  a  plain  instrument  without  am- 
biguity or  doubt,  is  taken  by  the  court  and  placed. in  the  pillory 
of  the  dark  ages,  so  to  speak,  and  subjected  to  the  thumbscrews  of 
the  rule  in  Shelley's  Case.  And  the  result  is  that  the  sons  get  the 
fee   simple   and   the  grandchildren    get    nothing.     And    this  is 


84  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

the  wisdom  of  the  common  law.     The  curious  will  find  this  case 
in  Hageman  v.  lieigeman,  129  111.  164." 

In  closing  his  address,  Mr.  Courtney  says  that  the  great  remedy 
for  all  the  evils  of  our  law  is  less  regard  for  ancient  precedent  and 
greater  regard  for  common  sense, — more  modern  instances  and 
fewer  ancient  saws. 

Probably  the  laws  relating  to  patents,  having  arisen  during 
periods  of  increased  mechanical  knowledge,  are  less  ham- 
pered by  legendary  dicta  /  and  as  a  hint  of  what  the  future  is 
likely  to  contain,  by  way  of  a  better  understanding  between  the 
legal  and  all  other  professions,  attention  is  called  to  the  def- 
erence for  mechanical  principles  shown  by  the  bench  and  bar  in 
patent  contests.  Instead  of  the  failure  of  forensic  medicine  as  a 
profession,  wherein  the  medical  attorney  pretends  to  sufficient 
knowledge  of  both  law  and  medicine  as  applicable  to  all  cases,  it 
will  be  found  that  proficiency  in  a  single  branch  of  legal  medi- 
cine, such  as  forensic  psychiatry,  or  forensic  toxicology,  is  alone 
possible.  The  day  has  gone  when  one  person  could  compass  what 
was  known  in  the  fields  of  law  and  medicine.  The  specialist  of 
•our  time  finds  that  international,  corporation,  criminal,  and  vari- 
ous divisions  of  the  civil  law,  surgical  branches,  the  treatment  of 
the  eye  and  ear,  mental  diseases,  throat  and  chest  affections,  fe- 
male diseases,  etc.,  require  a  lifetime  of  study  and  industry  to 
acquire  anything  approximating  ability  in  any  one  department. 

Criminal  anthropology.  Havelock  Ellis1  classifies  criminals 
as  (1)  the  criminal  by  passion ;  (2)  the  occasional  criminal:  (3) 
the  habitual  or  professional  criminal ;  (4)  the  instinctive  criminal ; 
(5)  the  criminal  insane. 

The  criminal  by  passion  is  one  who  has  acted  on  the  spur  of 
the  moment,  as  in  resenting  an  injury  to  his  family.  These  per- 
sons are  distinguished  usually  by  their  previously  good  life  and 
their,  genuine  remorse. 

The  occasional  criminal  is  one  who  is' not  naturally  inclined  to 
■crime,  but  is  weak  and  easily  led.  Bad  heredity  is  prominent  in 
this  class. 

The  habituals  criminals  are  made  up  of  the  weak  or  helpless 
and    those    who    deliberately   adopt    a    career   of    crime.     The 

1  Tne  Criminal,  1890,  Contemporary  Science  Series,  London. 


CRIMINAL    CASES.  85 

professional  is  the  aristocrat  among  criminals,  and  is  often  highly 
skilled. 

The  instinctive  criminal  (congenital  or  born  criminal)  is  re- 
garded by  Lombroso  as  morally  insane.  His  type  is  of  the  clearly 
degenerate  stock. 

The  insane  criminal  is  an  exaggeration  of  the  instinctive  crim- 
inal, according  to  the  Italian  school1  of  anthropology  ;  and  French 
writers2  also  adopt  this  view,  over  which,  in  the  present  state  of 
the  law  and  of  popular  feeling,  there  could  be  endless  wrangling. 

Two  noted  journals  are  devoted  to  the  subject.3 

The  heads  of  criminals  differ  little  from  the  average,  both  ex- 
tremes of  size  being  more  frequent  than  the  middle-sized  head. 
Thieves  more  frequently  have  small  heads,  and  murderers  large 
heads.  Abnormal  skull  shapes  are  frequent.  The  weight  and 
size  of  the  lower  jaw  are  above  the  average ;  prominent,  large, 
and  outstanding  ears  are  observed  in  39  per  cent  of  crim- 
inals as  against  20  per  cent  of  noncriminals ;  wrinkles  are  pre- 
cocious ;  the  beard  is  scanty,  but  the  hair  of  the  head  is  abundant ; 
the  dark-haired  is  more  common  than  the  light-haired  criminal, 
in  proportion  to  the  population.  Pigeon-breasts,  imperfectly 
developed  chests,  and  stoop-shoulders  abound ;  heart-disease  is 
common,  and  anomalies  of  the  genitals  are  often  found  in  sexual 
offenders. 

Of  4,550  inmates  of  the  Elmira,  N.  Y.,  Reformatory,  539,  or 
12.8  per  cent,  have  been  of  insane  or  epileptic  ancestry ;  23.03 
per  cent  of  the  Auburn,  JST.  Y.,  prisoners  were  of  insane,  epileptic, 
and  otherwise  neurotic  ancestry,  among  233.  Bad  heredity  is 
recorded  by  all  penologists  and  anthropologists  as  existing 
through  disease  of  some  kind  in  the  parents,  in  from  46  to  90  per 
cent  of  the  cases.  Many  criminals  were  the  children  of  very 
old  or  very  young  parents.  Drunkenness  existed  in  about  40  per 
cent  of  the  parents  of  criminals,  as  opposed  to  15  per  cent  for 
normal  persons. 

Despine'  studied  the  matter  of  moral  insensibility  of  the 
criminal,    and    ascertained    that    those    who    premeditate    and 

1  Lombroso,  L'Uomo  Delinquente,  Turin. 

2  Corre,  Les  Criminels,  Paris;  Laurent,  Les  Habitues  des  Prisons,  Paris. 
;  Arelrivio  di  Psichiatria,  by  Lombroso,  in  Italy;  and  Lacassagne's,  Ar- 
chives de  l'Antbropologie  Criminelle. 

4  Psyehologie  Natnrelle,  1868. 


S6  MEDICA.L    JUKISPKUDENCE    OF    INSANITY. 

commit  crimes  in  cold  blood  never  experience  moral  remorse. 
He  found  also  that  those  who  manifest  acute  sorrow  and  real  re- 
morse after  a  criminal  act  have  committed  that  act  either  under 
the  influence  of  a  violent  passion  which  has  momentarily  stifled 
the  moral  sense,  or  by  accident  without  intention.  He  concludes 
that  the  two  great  psychical  conditions  for  crime  are  moral  in- 
sensibility and  perversity,  with  two  accessory  moral  anomalies, 
imprudence  and  lack  of  foresight. 

Care  should  be  exercised  in  examining  such  cases  to  ascertain 
if  penitence  is  real  or  assumed ;  the  former  being  less  obtrusive 
than  the  latter. 

Marro1  found  a  noticeable  defect  in  intelligence  in  twenty-one 
criminals  out  of  500,  and  that  incendiaries  first,  and  then  murderers, 
yielded  the  largest  proportion  of  individuals  with  defective  in- 
telligence ;  then  came  vagabonds,  sexual  offenders,  those  convicted 
of  assault,  highway  robbery,  and  simple  theft.  The  fraudulent 
class,  as  well  as  the  pickpocket  and  burglar,  showed  no  instances 
of  defective  intelligence.  Criminals  against  the  person  show  a 
lower  level  of  intelligence  than  criminals  against  property. 

Ellis2  remarks  that  "  the  two  most  characteristic  features  in  the 
intelligence  of  the  average  criminal  are  at  first  sight  inconsistent. 
On  the  one  hand  he  is  stupid,  inexact,  lacking  in  forethought, 
astonishingly  imprudent.  On  the  other  hand  he  is  cunning, 
hypocritical,  delighting  in  falsehood,  even  for  its  own  sake, 
abounding  in  ruses.  These  characteristics  are  fully  illustrated  in 
the  numerous  anecdotal  books  which  have  been  written  concern- 
ing crime  and  criminals." 

Intriguery  and  duplicity,  which  amount  to  the  same  thing,  are 
attributes  of  criminals  and  savages,  merely  developed  from  com- 
mon animal  cunning ;  and  the  higher  intelligence  despises,  and  is 
even  incapable  of,  the  so-called  diplomacy,  which  is  rapidly  being 
relegated  to  the  limbo  of  medieval  manners  and  customs.  There 
is  no  such  diplomat  as  the  intelligent  criminal  on  the  large  scale. 

Abundant  opportunities  for  easy  study  of  such  peculiarities  are 
afforded  in  members  of  the  city  council,  county  commissioners,  and 
occasionally  legislators  elected  to  office  from  some  of  our  larger 
cities.     Many  of  these  criminal  politicians  regard  honesty  as  mere 

1 1  Caratteri  dei  Delinquenti,  Turin. 
-Op.  eit. 


CRIMINAL    CASES.  87 

stupidity,  and  they  actually  cannot  understand  why  anyone  should 
forego  an  opportunity  to  rob,  especially  the  public,  except  through 
lack  of  courage  or  wisdom,  as  they  conceive  such  qualities. 

Ellis  asserts  that  the  vanity  of  criminals  is  marked,  and  they 
are  quite  frequently  sentimental;  that  religion  or  superstition  is 
common,  while  free  thinking  is  rare.  They  are  lazy,  with  capacity 
for  violent  activity.  They  crave  all  forms  of  stimulants,  and 
are  addicted  to  gambling.  Orgies  or  violent  debauches  are  char- 
acteristic of  criminals. 

Many  criminal  traits  are  apparently  reversions  to  savage 
peculiarities. 

Savages  and  criminals  are  very  often  lefthanded ;  both  are 
addicted  to  tattooing  the  person,  and  the  stupidity  or  cunning  of 
the  criminal  is  closely  related  to  that  of  savages  and  lower  ani- 
mals. Common  criminal  titles  are  "  the  fox,"  "  the  cat,"  "  the 
bull  dog,"  etc.  The  love  of  revenge  predominates  in  both  sav- 
age and  criminal,  and  bestial  tendencies  generally,  especially 
the  sexual,  are  observable  among  savages,  criminals,  and  some 
insane. 

Anthropologists  have  not  devoted  much  time,  as  yet,  to  the 
highest  and  most  respectable  class  of  criminals,  but  their  study 
will  not  be  much  longer  delayed,  for  their  increase  in  numbers 
threaten  the  existence  of  decent  government  and  institutions. 

Sexual  offenses  appear  to  be  among  the  more  common  royal 
delinquencies,  instead  of  the  other  forms  of  licensed  criminality 
of  the  former  ages.  "  Morganatic  marriage  "  means  more  than 
its  dictionary  definition.  Polygamy  and  illegitimacy  are  concerns 
of  commoners.  Treason,  not  of  the  Benedict  Arnold  kind,  but 
quite  as  dangerous  in  sapping  the  strength  and  resources  of  the 
country,  is  practised  under  the  guise  of  "statesmanship"  through 
syndicate  operations  in  Congress  and  elsewhere.  Incendiarism 
is  occasionally  resorted  to  by  wealthy  insured  respectables  when 
an  emergency  arises  in  their  finances.  Demagogues  in  all  ave- 
nues of  life,  and  mercantile  bribers  of  those  who  have  charge  of 
the  sick,  insane,  and  paupers,  are  none  the  less  thieves  and  mur- 
derers because  they  do  not  immediately  witness  the  privation, 
sickness,  and  death  in  which  their  filchings  from  these  unfortu- 
nates more  or  less  directly  result.  Everyone  knows  of  such 
instances ;  but  we  have  acquired  separate  standards  of  right  and 


8$  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

wrong  for  those  who  can  and  those  who  cannot  practise  crime 
with  safety.  The  most  intelligent  criminal  is  really  the  most 
dangerous,  and  it  is  he  whom  the  later  ages  will  look  after,  as 
closely  as  now  the  iniserables  are  hounded. 

The  record  of  the  trial  in  Philadelphia,  in  1S95,  of  H.  H. 
Holmes,  who  murdered  several  persons  from  combined  merce- 
nary and  bloodthirsty  motives,  abounds  in  such  horrible  details 
that  death  seems  insufficient  punishment  for  such  a  monster. 
His  general  intelligence  was  above  the  average;  and  his  abili- 
ties applied  in  ordinary  channels  would  have  been  well  re- 
warded. In  other  countries  such  fiends  are  often  leaders  of 
banditti,  lad  rones,  and  guerrillas.  The  pirates  and  European  armies 
of  mercenaries  in  the  middle  ages,  and,  in  fact,  the  feudal  period 
generally,  gave  to  criminals  of  the  Holmes  type  a  respectability 
that  can  no  more  be  appreciated  now  than  the  remote  future 
will  be  able  to  understand  our  reverence  for  a  similar  misdirected 
intelligence  that  corrupts  legislators,  and,  in  multitudes  of  other 
ways,  seeks  to  glut  its  rapacity  by  remorseless  means.  Vast 
commercial  operations  often  legitimatize  human  sacrifice  and  rob- 
berv  on  grand  scales.  The  advance  of  knowledge  and  the  in- 
crease of  thoughtfulness  will  enable  the  community  to  single  out 
the  persons  directly  responsible  for  wholesale  murder  and  pillage ; 
though  Bellomonts  will  be  frustrated  by  Kidds,  as  in  the  time  of 
King  AYilliam,  when  the  Jsew  York  pirates  had  behind  them  as 
respectable  commercial  support  as  to-day  can  be  counted  upon 
by  some  great  political  and  syndicate  organizations. 

Forensic  psychiatry  would  be  incomplete,  and  behind  the  age. 
if  it  did  not  at  least  indicate  what  will  soon  become  new  inqui- 
ries within  its  scope, —  the  operations  of  criminals  in  higher 
places. 

Criminality  or  mental  warp  is  none  the  less  such  when  exhib- 
ited bv  officials.  The  greatest  anarchist,  said  Ingersoll,  may  be 
one  who  wears  the  ermine.  A  prosecuting  attorney  is  occasion- 
allv  found  who  counts  his  convictions  as  the  Indian  does  his 
scalps,  the  latter  by  notches  or  "  coups,"  and  the  former  by  vic- 
tories regardless  of  the  innocence  or  guilt  of  the  accused  party. 
Future  psychological  studies  will  characterize  that  species  of 
homicidal  propensity  as  defective  intelligence  due  to  moral  imbe- 
cilitv,  instinctive  criminality,  or  mere  native  savagery. 


CRIMINAL    CASES.  89 

The  populace  in  times  of  public  excitement  is  often  as  devoid 
of  reason  as  the  maniac ;  and  genuine  paranoiac  logic  abounds  at 
such  times  to  justify  the  execution  of  lunatics,  or  to  promote 
international  quarrels  and  war.  Trials  controlled  by  popular 
clamor  are  lynchings  ;  and  the  lynching  spirit  permeates,  at  times, 
the  entire  solemnity  of  the  proceedings.  Let  jurists  calmly 
inspect  the  records  of  many  notable  trials,  beginning  with  that 
of  MclSTaughton,  and  observe  how  the  determination  to  avenge 
a  conspicuous  homicide  overcomes  all  opposition,  particularly  such 
as  would  exculpate  the  offender  on  the  ground  of  insanity. 

The  savage  sentiment  is  often  expressed  that  the  insane  should 
be  destroyed  anyway.  The  Indian  is  moved  by  similar  motives 
to  abandon  his  chronic  sick  and  aged  to  the  wolves. 

Insanity  as  a  defense.  Chief  Justice  Parker  of  New  Hamp- 
shire in  a  charge  to  a  grand  jury '  made  a  just  and  humane  sum- 
mary of  the  prejudices,  passions,  and  ignorance  in  many  protests 
against  the  insanity  plea ;  though  the  greatest  impediments  to 
the  sufficiency  of  such  a  defense  lie  in  legal  constructions  of  what 
constitutes  mental  disease,  and  its  accountability  for  crime.  The 
inconsistency  of  the  law  in  seeking  general  principles  from  widely 
differing  diseased  states  is  still  more  apparent  in  further  deriv- 
ing from  them,  from  acknowledged  motives  of  expediency,  two 
separate  standards  for  criminal  and  civil  applications. 

The  theory  that  insanity  was  a  question  exclusively  of  fact, 
and  therefore  a  matter  for  the  jury  to  determine,  was  announced 
in  State  v.  Pike  :s  "  "Whether  the  defendant  had  a  mental  dis- 
ease, and  whether  the  killing  of  his  wife  was  a  product  of  such 
disease,  are  questions  of  fact  for  the  jury." 

"  Insanity  is  a  mental  disease ;  a  disease  of  the  mind.  An  act 
produced  by  mental  disease  is  not  a  crime." 

"Wharton's  objection  to  this  proposition  is  that  "  mental  dis- 
ease "  included  every  phase  of  human  passion,  but  he  appears 
to  have  overlooked  the  fact  that  the  opinion  was  restricted  to  in- 
sanity, which  is  merely  a  form  of  mental  disease.  He  further 
states  that  "  the  question  in  criminal  issues  is  not  insanity,  but 
irresponsibility,  which  it  is  eminently  important  should  be  lim- 
ited by  positive  definition  by  the  highest  judicial  authority  the 

1 1  Whart.  &  S.  Med.  Jurisp.  §  108. 
2  49  N.  H.  399,  6  Am.  Eep.  533. 


«J0  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

state  can  constitute ;  and  that  experts  do  not  form  such  an 
authority  because  their  sense  as  a  body  cannot  be  obtained  by 
any  process  known  to  our  courts,  because  there  is  no  independ- 
ent court  of  experts,  which,  on  notice  to  both  sides  and  after 
jaroument  if  necessary,  can.  when  the  experts  called  in  a  particu- 
lar case  differ,  give  a  judicial  opinion  upon  the  issue ;  and  be- 
cause, in  many  cases  of  criminal  defense,  only  those  eccentric 
and  exceptional  experts  are  selected  who  believe  in  some  wild 
theory  which  may  help  out  the  defendant's  case."  1 

The  same  reasoning  may  apply  to  any  earthly  question,  and, 
given  equal  intelligence,  better  opportunity,  and  special  training 
in  all  that  relates  to  a  given  subject,  the  profound  study  of  that 
subject  should  qualify  the  student  to  pass  upon  all  that  pertains 
to  it  more  intelligently  than  the  one  who  is  not  so  qualified.  Dis- 
honesty and  wild  theory  are  not  the  exclusive  possession  of  any 
one  class  or  profession,  and  if,  as  Judge  Wharton  states,  lawyers 
seek  such  theorists  and  eccentric  experts,  the  fault  is  elsewhere 
than  with  those  who  honestly  struggle  to  master  and  present  the 
facts  in  such  a  special  field  cf  human  knowledge.  "Where  could 
worse  logic  and  wilder  theory  be  found  than  in  the  parliamentary 
and  judicial  conference  of  1843  ? 

]STor  has  there  been  any  agreement  among  jurists  as  to  what  con- 
stitutes insanity.  Mere  consensus  of  opinion  need  not  be  regarded 
as  establishing  more  than  a  temporary  agreement,  which  may  or 
may  not  be  consistent  with  actualities.  The  disagreements  of 
doctors  originally  had  reference  to  doctors  of  divinity,  and  the 
failure  of  all  physicians  to  think  alike  is  no  worse  than  the  differ- 
ences to  be  found  among  the  judges  and  members  of  the  bar  on 
vital  questions. 

Xo  human  intellect  can  pass  upon  criminal  responsibility  other- 
wise than  arbitrarily,  whether  as  legislator,  judge,  juror,  or  phy- 
sician, unless  in  possession  of  sufficient  information  upon  which 
to  base  an  opinion.  The  physician  may  not  be  aware  of,  nor  re- 
gard, the  legal  consequences  that  may  flow  from  asserting  the  irre- 
sponsibility of  some  lunatic  who  is  foredoomed  by  the  lynching 
spirit;  but  with  vastly  better  opportunities  for  the  study  of  the 
phenomena  of  disease,  and  less  likely  to  be  hampered  by  tradition, 
the  physician  who  as  such  has  made  a  special  study  of  insanity, 

1  Whart.  &  S.  Med.  Jurisp.  §§  112  ei  scq. 


CKIMINAL    CASES.  91 

is  plainly  in  a  position  to  make  deductions  from  the  mental  states 
of  disease,  which  all  others  would  appreciate  properly  were  they 
to  enjoy  similar  opportunities. 

When  an  alienist  can  describe,  fully  and  accurately,  the  course 
of  a  malady  of  any  sort,  it  is  no  uncommon  thing  for  his  auditors 
to  agree  Math  his  views.  It  is  not  generally  known  that  a  typhoid 
fever  patient  may  become  dangerous  to  himself  and  others,  in 
a  sudden  attack  of  delirium.  A  thorough  knowledge  of  all  that 
pertains  to  typhoid  conditions,  the  causes,  duration,  treatment, 
prospects  for  recovery,  and  the  mental  peculiarities  of  that  disease, 
furnishes  a  basis  for  an  opinion  as  to  the  responsibility  of  the 
patient  for  any  offense  committed.  Insanity  is  not  a  disease,  it  is 
merely  an  effect  of  disease,  it  is  symptomatical ;  and  an  unpro- 
voked attack  should  certainly  be  considered  from  the  standpoint 
of  sickness  existing  at  the  time,  the  particular  kind  of  sickness, 
and  the  characteristics  of  such  ailment,  especially  as  bearing  upon 
what  those  similarly  afflicted  have  done.  The  responsibility  for 
an  act  performed  in  a  typhoid  fever  delirium  involves  questions 
as  to  the  entire  disease,  and  cannot  be  intelligently  separated 
from  such  complete  knowledge.  It  is  not  possible  with  insuffi- 
cient data  to  arrive  at  adequate  conclusions  upon  any  topic  ;'  there- 
fore, while  the  alienist  can  instruct  judge,  jury,  or  legislators,  as 
to  peculiarities  of  mental  diseases  so  that  intelligent  laws  may  be 
framed  and  administered,  the  source  of  the  requisite  knowledge 
should  be  remembered. 

In  so  far  as  others  acquire  information  enabling  them  to  have 
competent  opinions,  they  have,  to  that  extent,  become  experts 
themselves. 

The  old  English  rule  that  insane  persons  coidd  not  he  put  upon 
trial  or  convicted  has  been  affirmed  very  generally  throughout 

I  the  United  States,  but  is  occasionally  interpreted  as  imposing 
upon  the  defendant  the  affirmative  of  the  issue  and  giving  him 
the  right  to  begin  and  conclude  to  the  jury.  Sometimes  this  pre- 
liminary trial  of  the  insanity  issue  is  held,  as  not  a  matter  of  right 
belonging  to  the  accused,  but  as  within  the  discretion  of  the 
court.  In  Wisconsin  trials  I  observed  that  where  the  insanity  in- 
quest preceded  the  trial  for  the  crime,  the  defendant  was  placed 
at  a  disadvantage,  because  much  of  the  testimony  going  to  prove 
the  crime  was  thus  introduced,  for  the  first  time,  to  the  prosecut- 


92  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

ing  attorney.  In  short,  in  proving  the  insanity  the  crime  was 
also  proved  by  the  witness  for  the  defense. 

An  English  decision1  provides  that  counsel  defending  a  prisoner 
may  set  up  in  his  behalf  the  defense  of  insanity,  although  the 
prisoner  objects  to  the  plea  and  strenuously  asserts  that  he  is  not 
insane. 

Paranoiacs  on  trial  for  murder  are  frequently  opposed  to  in- 
sanity being  pleaded  for  them,  and  in  both  the  Guiteau  and  Pren- 
dergast  trials  the  prisoners  constantly  interrupted  the  proceedings 
with  comments,  disclaimers,  and  abuse.  In  the  case  just  cited 
the  prisoner  was  also  allowed  to  suggest  questions  to  be  put 
by  his  lordship  to  the  witnesses  for  the  prosecution  to  negative 
the  supposition  that  he  was  insane,  and  was  also  allowed  to  call 
additional  witnesses  on  his  behalf  for  the  same  purpose.  The 
freedom  from  control  of  counsel  by  the  prisoner  was  held  in 
State  v.  Patten? 

The  law  as  to  persons  who  become  insane  after  committing  a 
criminal  act  is  stated  by  Hale  : 3  "  If  a  man  in  his  sound  memory 
commits  a  capital  offense,  and  before  arraignment  for  it  becomes 
mad,  he  ought  not  to  be  arraigned,  because  he  cannot  advisedly 
plead  to  the  indictment ;  and  if  such  person  after  his  plea  and 
before  his  trial  becomes  of  nonsane  memory  he  shall  not  be  tried ; 
or  if  after  his  trial  he  becomes  insane  he  shall  not  receive  judg- 
ment ;  and  if  he  lose  his  senses  after  judgment  die  shall  not  be 
executed,  for  were  he  of  sound  memory  he  might  allege  some- 
what in  stay  of  judgment  and  execution." 

In  Corn.  v.  Braleyf  a  prisoner  was  indicted  for  the  murder  of 
his  wife.  He  had  also  soon  after  cut  his  throat  in  a  manner  that 
endangered  life.  He  pleaded  guilty,  but  stated  that  he  did  not 
know  what  he  had  done.  A  jury  was  sworn  to  find  '"whether 
he  neglected  or  refused  to  plead  to  the  indictment  against  him 
for  murder,  of  his  free  will  and  malice,  or  whether  he  did  so 
neglect  by  the  act  of  God."  The  jury  found  that  he  did  so 
neglect  by  the  act  of  God,  and  the  prisoner  was  remanded  to  jail. 

In  Freeman  v.  People*  the  Xew  York  supreme  court  held 

1  Reg.  v.  Pearce  (1840)  9  Car.  &  P.  667. 

2  10  La.  Ann.  299,  63  Am.  Dec.  594. 
s  Pleas  of  the  Crown,  35. 

4  1  Mass.  103. 

5  4  Denio,  9,  47  Am.  Dec.  216. 


CRIMINAL    CASES.  \)6 

that   while   a   person   continues   insane   he   cannot  be  tried  or 
punished. 

In  the  same  case  it  was  held  to  be  error  where,  on  the  trial  of 
an  indictment  for  murder,  the  court  refused  to  permit  evidence 
to  be  given  that  the  prisoner  was  insane  at  any  time  after  the 
finding  of  the  verdict  on  the  preliminary  issue  of  insanity  at  the 
trial. 

And  where  the  prisoner  was  tried  for  murder  four  months 
after  the  crime  was  committed,  evidence  that  he  was  insane  at 
the  time  of  the  trial  was  relevant  on  the  question  of  his  sanity 
four  months  before.1 

Insanity  after  verdict  or  judgment.  If  the  person  after  con- 
viction of  a  capital  felony  suggests  insanity,  the  judgment  must 
be  suspended  until  the  fact  can  be  tried  by  a  jury ;  if  after  judg- 
ment, execution  must  be  likewise  stayed.2 

In  an  inquisition  to  inquire  into  the  sanity  of  a  man  convicted 
of  murder  and  sentenced  to  be  hanged,  but  who,  it  is  claimed, 
has  since  become  insane,  evidence  of  his  insanity  before  convic- 
tion is  inadmissible,  except  when  such  insane  acts  are  explanatory 
of  insane  acts  since  conviction.3 

The  day  before  the  execution  of  the  anarchists  in  Chicago,  in 
1886,  the  question  of  insanity  of  one  of  the  condemned,  Louis 
Lingg,  was  raised,  and  he  was  to  be  brought  before  the  county 
court  on  an  inquest.  The  state's  attorney  asked  my  opinion  as 
to  whether  Lingg  had  become  insane  since  the  trial.  As  1  had 
-sufficient  reason  to  believe  that  he  had  always  been  insane  I 
stated  my  intention  of  testifying  that  if  the  judicial  proceedings 
had  established  the  sanity  of  the  prisoner  so  that  he  could  not 
have  been  regarded  as  insane  previous  to  the  trial,  and  at  the 
same  time  Lingg  was  now  a  demonstrable  lunatic,  the  inference 
was  inevitable  that  Lingg  must  therefore  have  become  in- 
sane since  the  trial,  though  in  my  opinion  his  previous  insanity 
had  been  overlooked.  An  hour  before  the  time  set  for  the  insan- 
ity inquest  Lingg  blew  his  head  to  pieces  with  a  cartridge.4 

Homicide.  Burdraghi,  since  1S89,  has  been  accredited  and 
quoted  by  numerous  European  and  American  medical  journals 

1  Ibid. 

2  State  v.  Vartn  (1881)  84  N.  0.  722;  State  v.  Brinyea  (1843)  5  Ala.  241. 

3  Spann  v.  State  (1873)  47  Ga.  549. 

4  For  further  citations  and  legal  discussion  on  this  subject,  see  chap.  TIL 


94  MEDICAL    JUJKISPJSDDENCE    OF    INSANITY. 

with  the  following  analysis  of  one  hundred  cases  of  homicide 
tnitted  by  the  insane: 

The  great  majority  were  cases  of  delusions  of  persecution; 
eighteen  were  epileptics;  two  were  instances  of  transitory  frenzy  ; 
-  cannibalistic. 

Fifty-eight  of  the  insane  killed  relatives,  and  forty-two  killed 
Strang 

The  youngest  murderer  was  four  years  old,  a  girl,  who  threw 
into  the  tire  an  infant  she  had  been  left  to  attend  ;  the  oldest 
was  Beventy  years  of  age;  thirty  were  between  thirty  and  forty 
-  old. 

Seventy-five  were  men;  twenty-five  women. 

enteen    were    quite    illiterate,    and    sixty-one    were  poorly 
educated. 

Religions  delusions  were  present  in  twelve,  and  in  five  of  these 
were  the  immediate  motive  of  the  crime;  twenty-five  were 
hallucinated,  and  fourteen  had  been  previously  insane.  Fifteen 
had  killed  two  or  more  persons,  one  individual  having  murdered 
no  less  than  eleven.     In  nineteen  no  motive  could  be  assigned. 

That  even  excessive  joy  may  destroy  the  reason  is  shown  by 
the  ease  of  a  man  who  unexpectedly  came  into  a  fortune  of 
si "j mm. .000  and  killed  his  wife  and  children. 

In  fourteen  the  act  was  premeditated,  and  in  these  and  another 
case  considerable  ingenuity  was  shown  in  the  carrying  out  of  the 
bomicides. 

Twenty-seven  sought  concealment  in  flight,  but  all  sooner  or 
later  returned. 

Three  attempted  to  prove  alibis. 

Twenty-three  prevaricated,  but  of  these  twelve  had  lost  all 
recollection  of  their  acts;  sixty-seven  remembered  them,  but  in 
fourteen  cases  they  were  committed  under  the  influence  of 
hallucinations;  fourteen  others,  though  knowing  what  they  had 
done,  were  of  weak  intellect,  and  one  was  a  case  of  transitory 
frenzy.  (This  latter  instance  needs  explanation,  as  memory  of 
events  immediately  preceding  the  murder,  with  what  he  had  been 
told  that  he  had  done,  might  be  the  means  by  which  he  "knew 
what  he  had  done.") 

Fifty-four  were  remorseful,  more  or  less:  but  of  these  forty- 
x  failed  to  realize  the  enormity  of  their  crimes ;  seven  gloried 


CRIMINAL    CASES. 


95 


in    them;    twenty-three    attempted    to    exculpate    themselves- 

1  mo  If  T6  S"b6e1»»%  transferred  from  the  asy 
asylnm.         ''     '  "  "  *"  SUCCeCded  *>  —^  fr°-  tlfe 

of  tTa"f;.ifw  6re  ^^  °f  rc5P°"sibi%  0"  «-  ground 
fo.  he  t;«  /  7Pe  pTOnonaeed  t0  be  Partially  accountable 
to.  then  act  (under  German  verdicts),  and  sentenced  to  various 
periods  of  imprisonment;   while   eight   were  found  gn~ 

Homicides  are  committed  by  many  kinds  of  insane 

destcl"  rtlidi0t\ai'e  SOmetimeS  CSpaWe  »f  horseless 
oest  notion  of  their  victims  in  a  great  variety  of  wavs   as  hv 

butchery  poisoning,  hanging,  burning,  drowning,  etc     '  '         * 

cidt     wlC  T?  Stat!S  a,'e  reSp0'18iWe  fOT  innumerable  homi- 
cides,   wife  murder,  often   of   the   most  savage  nature    is  con 
spieuous  among  these.  °       Mme<  Is  con- 

After  head  injuries  the  homicidal  disposition  is  frequently 
developed  when  insanity  is  the  result  of  such  traumatism  ad 
alcoholism  is  too  often  conjoined  with  such  insanity,  some'times 

t"the  I'  Tde -S  H  diffiCUlt  t0  detem™e  h-  '»^" 
insanity!  "'^  ""*  *  ^  *™ter  fector  iu   «>* 

Paranoides  are  the  most  numerous  assailants  of  prominent  per 

Terll    aUndnS8' f  fdeDtS'  ^"^  "»™  and  ^    - 
generally      Under   delusions   of  persecution   these   degenerates 

ingle  out  heads  of  governments  to  adjust  what  they  confer  to 
be  public  wrongs,  and  occasionally  seek  similar  insane  rede  of 
imaginary  or  real  private  wrongs. 

Senile   dements  are   liable  to  kill  others    only  durinc   their 
maniacal  outbursts,  as  when  they  fancy  themselves  surrounded 

bodiXn.01'  ^  t,lei"  f"ie"dS  a"6  *"*«'  "^  to  d°  *S 
_  At  puberty  homicidal  acts  similar  to  those  committed  bv 
imbeciles  may  occur.  Climacteric  aggressive  impulses  may  result 
(  m  the  death  of  the  one  attacked,  or  a  delusion  nay  originate  the 
homicidal  propensity  at  this  period  in  women 

Transitory  frenzy  may  result  in  murder,  but  most  often  with- 
out premeditation,  and  the  victim  is  the  nearest  bystander.     It  is 


96  S1EDICAL   JCRISPECDEXCE    OF    INSANITY. 

conceivable  that  a  prejudice  may  have  existed  previously,  arous- 
ing tin'  suspicion  of  design;  but  while  the  despised  person  may 
be  the  one  killed,  because  nearest  at  the  time  of  the  frenzy,  any 
other  person  would  have  been  as  likely  to  be  slain  under  the  cir- 
cumstances. Preparation,  prearrangement,  or  deliberate  planning 
and  execution  of  acts,  necessitating  traveling,  purchase  of  weapons, 
etc..  in  connection  with  motive  for  killing,  are  incompatible  with 
transitory  frenzy.  Emotional  and  moral  insanities  are  terms  that 
were  formerly  used  to  designate  insane  states  in  which  homicides 
were  committed,  but  such  insanities  are  now  no  longer  recognized 
either  in  law  or  medicine. 

Delirium  might  occasion  the  death  of  one  who  restrained  a 
furious  case  of  the  kind,  and  delirium  tremens,  even  after  a 
single  debauch,  might  similarly  result  in  homicide  of  a  bystander. 
Premeditation  would  be  out  of  the  question  in  such  instances,  ex- 
cept where,  as  in  transitory  frenzy,  an  enemy  happened  to  be 
present  at  the  time. 

Homicide  committed  by  one  suffering  with  simple  mania  is 
more  likely  to  be  unintentional  than  designed,  in  the  greater  num- 
ber of  instances.  The  changeableness  of  maniacal  fancies  would 
prevent  deliberation,  but  it  is  to  be  remembered  that  maniacs 
cherish  dislikes,  and  upon  an  opportunity  presented  may  avenge 
themselves. 

Melancholiacs  are  more  apt  to  be  suicidal,  but  during  their 
frenzies  of  terror,  when  the  universe  is  changed  in  appearance  to 
them,  they  have  killed  their  dearest  friends.  They  may  also  en- 
tertain dislikes,  and  an  attack  of  fury  may  be  brought  on  by  the 
presence  of  a  hated  person. 

During  puerperal  insanity  infanticide  is  common,  and  particu- 
larly in  the  transitory  frenzy  of  betrayed  women  during  child- 
birth. 

Epilepsy  is,  at  times,  particularly  homicidal.  Revolting  and 
motiveless  crimes  have  been  committed  in  the  insane  and  uncon- 
scious states  of  this  disease,  and  epileptics  are  capable  of  both 
planned  and  premeditated  crimes  of  which  no  recollection  may  be 
preserved.  Undoubtedly  many  mysterious  murders  have  been 
perpetrated  by  epileptics  that  were  not  known  even  to  the  per- 
petrators. Dr.  Forbes  "Winslow  predicted  years  before  the  cap- 
ture of  -Jack  the  Ripper"  that  the  murders  would  be  traceable 


CRIMINAL    CASES.  97 

to  some  form  of  periodical  homicidal  insanity,  and  the  London 
physician  who  was  finally  found  to  be  the  guilty  person  appears 
to  have  experienced  the  "double  consciousness"  states  that  char- 
acterize epilepsy  in  some  of  its  forms. 

Indifference  or  absence  of  remorse  is  generally,  but  not  inva- 
riably, characteristic  of  epileptic  criminality. 

Many  murders  that  would  otherwise  be  unaccountable  could 
probably  be  explained  as  products  of  unsuspected  epileptic  condi- 
tions ;  the  perpetrator  knowing  nothing  of  what  had  occurred,  or 
recollecting  hallucinations  and  giving  details  that  are  found  to  be 
untrue. 

A  paretic  dement  is  liable  to  make  murderous  assaults  at  times, 
in  epileptic-like  and  maniacal  furies,  but  not  assaults  of  the  delib- 
erate, planned  variety,  for  such  dangerous  periods  are  too  transient 
in  paretic  dementia. 

Hysterical  insanity  is  capable  of  murder  through  delusions  asso- 
ciated with  jealousy,  or  otherwise. 

Katatoniacs  and  other  periodically  insane,  during  either  melan- 
cholic or  maniacal  accesses,  may  be  guilty  of  homicide ;  the 
former  especially  when  complicated  with  alcoholism. 

Homicidal  insanity  as  a  distinct  clinical  entity  which  is  char- 
acterized by  the  impulse  to  murder,  and  without  other  recognized 
symptoms,  is  no  longer  admitted  either  legally  or  medically. 
Homicidal  inclinations  are  found  among  the  symptoms  of  almost 
any  kind  of  insanity,  but  the  impulse  to  murder  never  constitutes, 
by  itself,  a  morbid  condition  separable  from  all  other  symptoms. 
The  only  remaining  excuse  for  the  preservation  of  such  a  term 
as  homicidal  insanity  is  found  in  a  class  of  degenerates  entitled  by 
Regis  "  cerebral  neurasthenics,"  or  those  who  suffer  from  im- 
pulsive obsessions  or  morbid  propensities ;  but  the  associated 
symptoms  should  enable  the  alienist  to  recognize  such  persons 
apart  from  such  dangerous  impulses. 

Paul  Gamier1  defines  the  variety  of  impulse  sometimes  called 
homicidal  monomania  as  a  syndrome  (collection  of  symptoms) 
"  directly  connected  with  hereditary  moral  degeneration,  and 
essentially  characterized  by  the  desire  to  murder,  without  any 
intellectual  disorder  or  passion,  and  necessarily  requiring,  as  con- 
comitant mental  conditions,  persistence  of  consciousness,  anxious 

1  Folie  a  Paris,  1890. 

7 


y^  MEDICAL   JURISPBUDENCE    OF    INSANITY 

straggle  against  the  besetting  impulse,  and  lastly,  in  case  the  act 
is  committed,  subsequent  moral  depression." 

In  this  homicidal  impulse  the  intellect  is  clear  aside  from  the 
murderous  propensity,  which  is  repressed,  as  far  as  possible, 
with  anguish.  When  the  antecedents  of  the  assailant  are  not 
fully  known,  the  attempt  or  act  causes  surprise,  on  account  of  the 
absence  of  passion  or  motive  and  the  preservation  of  intelligence, 
consciousness,  and  memory.  The  reason  and  volition  strive  against 
the  impulse,  and  are  overcome  by  its  hideous  persistence. 

The  attack  may  be  suddenly  made  by  the  obsessed  person, 
though  the  inclination  may  have  lasted  some  time,  or  have  been 
suddenly  aroused.  The  obsession  may  amount  to  what  the  pa- 
tient fears  may  be  an  uncontrollable  one,  or  it  may  be  so  violent 
as  to  be  actually  beyond  control. 

The  premonitions  of  such  periods  are  stated  by  Garnier  and 
others  to  consist  of  li  a  sudden  sense  of  heat  in  the  head,  con- 
strictive headache,  painful  anxiety  located  apparently  about  the 
heart,  shivering,  etc."  Esquirol  in  the  early  part  of  the  nine- 
teenth century  noted  the  following  : 

••  "When  the  individuals  who  are  governed  by  impulse  to  mur- 
der are  carefully  observed,  one  finds  that  this  condition  is  pre- 
ceded and  accompanied  by  headache,  sickness,  and  abdominal 
pains,  such  as  often  occur  in  the  insane,  and  that  these  symptoms 
are  more  pronounced  when  the  dreadful  impulse  becomes  more 
powerful." 

The  patient  has  usually  confided  a  statement  of  his  struggles, 
sensations,  and  fears  to  one  or  more  persons,  usually  his  physician 
or  his  family;  sometimes  he  seeks  legal  control  against  his  pro- 
pensities, as  in  the  instance  narrated  in  another  part  of  this  book. 
<  rainier  claims  that  their  language  is  characteristic  in  describing 
their  apprehensions.  They  use  such  expressions  as,  "I  have  bad 
thoughts.  .  .  .  I  am  tormented  by  the  fear  of  doing  evil  to 
those  who  are  dearer  to  me  than  any  in  this  world.  .  .  .  An 
inexplicable  instinct  drives  me  to  do  the  most  frightful  crimes. 
.  .  .  I  must  fly  to  avoid  succumbing  to  this  impulse,"  etc. 
Their  expression  is  most  anxious.  Many  readily  forego  their 
liberty  until  the  period  is  passed.  The  destructive  impulse  may 
be  powerfully  excited  by  the  sight  of  instruments  convertible 
into  weapons,  by  favorable  opportunities,  and  other  suggestions. 


CRIMINAL   CASES.  99 

The  victims  may  be  strangers  or  members  of  his  own  family,  often 
his  children,  and  his  most  loved  ones.  The  majority  deplore  the 
propensity  and  seek  some  means  of  restraint,  while  a  few  conceal 
it.  Remorse  almost  invariably  follows  the  accomplishment  of  the 
act.  The  obsession  to  murder  may  be  of  slow,  intermittent  courses, 
and  with  exacerbations  of  the  desire,  which  may  be  more  or  less 
fixed  ;  or  the  impulse  may  appear  suddenly  like  an  epileptic  ex- 
plosion ;  but  the  consciousness  is  preserved,  as  it  is  not  in  epilep- 
tic phenomena,  as  a  rule. 

The  hereditary  or  other  predispositions  of  such  degenerates  are 
generally  quite  marked,  and  should  be  studied  in  establishing  the 
fact  of  the  uncontrollable  impulse. 

This  degenerate  impulse  might  be  mistaken  for  an  epileptic 
act,  or  one  committed  in  consequence  of  mandatory  hallucinations 
of  hearing.  The  history  of  the  case  should  sufficiently  distinguish 
them. 

The  insanity  of  uncontrollable  impulse  produced  by  mental  dis- 
ease is  recognized  as  a  defense  in  Com.  v.  Rogers,  7  Met.  500,  41 
Am.  Dec.  458 ;  Anderson  v.  State,  43  Conn.  514,  21  Am.  Rep. 
669 ;  Com.  v.  Mosler,  4  Pa.  267 ;  People  v.  Sprague,  2  Park. 
Crim.  Cas.  43;  Scott  v.  Com.  4  Met.  (Ky.)  227,  83  Am.  Dec. 
461 ;  Kriel  v.  Com.  5  Bush,  365 ;  Shannahan  v.  Com.  8  Bush, 
464,  8  Am.  Rep.  465  ;  Stevens  v.  State,  31  Ind.  485,  99  Am.  Dec. 
634 ;  State  v.  Fetter,  25  Iowa,  67.1 

In  cases  of  infanticide  Savage  remarks  that  "  the  law  itself 
rightly,  in  this  particular,  looks  upon  the  crime  itself  as  suf- 
ficient evidence  of  the  insanity;  that  a  loving  mother  should 
destroy  her  offspring  is  unnatural  and  unreasonable,  and  ought 
not  to  be  considered  as  an  act  for  which  she  can  be  held  respon- 
sible." Under  Head  Injury,  another  quotation  is  made  from  the 
same  alienist  concerning  the  act  itself  as  often  pointing  to  its  in- 
sane origin.  In  paranoiac  murders,  such  as  those  of  Guiteau  and 
Prendergast,  the  absurdity  of  their  justifications  should  attract 
attention.  These  degenerates  speak  as  though  the  universe  de- 
pended upon  them  for  control ;  governments,  religion,  every- 
thing, or  some  particular  or  general  welfare,  has  been  divinely 
intrusted  to  their  care,  and  in  their  watchfulness  over  such  mat- 

1  For  further  citations  and  discussion  of  this  subject,  see  chap.  VII.,  II., 
§§  6,  7. 


100  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

tore  it  appears  to  them  necessary  to  remove  some  offensive  indi- 
vidual who  is  powerful  enough  to  run  counter  to  their  plans  for 
universal  good. 

The  fact  that  insane  criminals  have  escaped  from  asylums,  or 
that  they  have  secured  release  on  habeas  corpus  proceedings, 
alleging  recovery,  properly  or  improperly,  induces  juries,  occa- 
sionally, to  visit  capital  punishment  or  penitentiary  conviction 
upon  offenders  whose  sanity  they  have  reason  to  doubt.  Juries 
should  be  advised  against  usurpation  of  legislative  or  judicial 
functions  in  adjusting  or  construing  laws  to  suit  fancied  contin- 
gencies, in  clear  violation  of  their  oaths. 

Sexual  crimes  are  occasionally  closely  associated  with  insane 
and  other  murders,  as  in  the  notorious  Whitechapel  murders  of 
"Jack  the  Ripper ;"  and  a  California  instance  of  the  murder  of  two 
young  girls  in  a  church  by  a  young  medical  student  who  was 
said  to  have  had  epileptic  attacks ;  but  as  this  was  not  brought 
out  in  his  defense  it  is  improbable  that  he  was  an  epileptic. 

A  negro  epileptic  ravished  a  white  girl  and  butchered  her  hor- 
ribly, leaving  the  mutilated  corpse  in  a  sack  but  indifferently 
secreted.  After  his  execution  his  brother,  wmo  was  not  known 
to  be  an  epileptic,  was  arrested  in  an  attempted  outrage  on  a 
white  female.  The  first-mentioned  occurrence  was  in  Chicago, 
and  the  last  in  Evanston,  Illinois. 

Occasionally  a  patient,  usually  of  the  degenerate  order,  is 
committed  to  an  asylum  for  the  offense  of  paederasty,  sodomy, 
and  for  other  unnatural  crimes.  The  officials  at  such  institu- 
tions are  placed  in  a  quandary  regarding  such  commitments,  as 
the  offensive  charges  indicate  the  unfitness  of  the  accused  to  be 
allowed  to  mingle  with  other  patients,  and  the  probabilities  are 
that  the  not  very  well-defined  insanity  in  such  culprits  is  of  a 
chronic  nature  and  renders  it  difficult  to  appropriately  classify 
them  with  other  cases  as  to  domicil  and  oversight. 

Erotomania,  as  illy  controlled  sexual  impulses  are  called,  afflict 
many  different  kinds  of  insane  persons,  and  the  most  dangerous 
of  these  are  epileptics  and  senile  dements ;  the  latter  are  inclined 
to  entice  young  girls  as  well  as  to  make  foolish  marriages.  Cases 
oi  circular  insanity  are  sexually  exalted,  and  are  apt  to  commit 
sexual  offenses. 

The  matter  of  sexual  perversion  is  fully  discussed  by  Krafft- 


CRIMINAL   CASES.  lOl 

Ebing.1  A  young  woman  was  temporarily  confined  at  the  Elgin 
asylum  for  sexual  intimacy  with  another  of  her  sex,  and  detect- 
ives are  occasionally  employed  in  effecting  separation  of  such 
offenders  by  threats  of  '  punishment.  A  Memphis,  Tennes- 
see, instance  came  to  trial,  wherein  the  female  sexual  pervert 
shot  and  killed  the  girl  with  whom  she  associated,  in  a  fit  of  jeal- 
ous rage.  Some  of  these  characters  are  manifestly  insane,  others 
appear  to  have  acquired  bestial  habits  through  circumstances, 
while  otherwise  seeming  to  be  sane,  as  far  as  the  reversion  to 
savagery  and  the  development  of  perverted  and  brute  instincts 
can  be  so  regarded.  The  Elgin  female  contracted  an  intimacy 
with  a  female  attendant  at  the  asylum  and  after  liberation  shot 
and  killed  the  attendant  in  jealous  rage. 

Larceny  or  kleptomania  may  be  consciously  or  unconsciously 
committed  in  nearly  every  variety  of  insanity.  Epileptics  may 
appropriate  property,  openly  or  secretly,  without  responsibility 
or  recollection  of  so  doing.  Senile  dements  mistake  the  effects 
of  others  for  their  own.  Paretic  dements  often  commit  stupid 
thefts,  and  may  even  steal  their  own  property.  It  is  unfortunate 
that  many  such  cases  have  been  apprehended  and  imprisoned 
for  the  crime  without  recognition  of  their  insanity.  When 
the  disease  becomes  far  advanced  in  the  penitentiary,  they  are 
too  often  considered  as  having  become  insane  after  incarceration. 
Imbeciles  are  frequently  adroit  thieves.  At  the  climacteric  klep- 
tomania sometimes  appears.  Alcoholism  can  so  degrade  the 
intellect  as  to  make  both  criminal  and  insane  thieves.  The  mor- 
phine and  opium  eater  steals  only  to  enable  him  to  procure  his 
poison.  Paranoiacs,  such  as  the  noted  book  thief,  Otto  Funk, 
may  take  the  property  of  others  as  their  right,  while  realizing 
the  necessity  for  secrecy,  knowing  that  the  public  does  not 
recognize  their  imaginary  claims  or  justifications.  Circular  insan- 
ity during  the  maniacal  stages  is  usually  associated  with  a  decid- 
edly thievish  and  fraudulent  disposition. 

Puberty  or  pregnancy  may  be  attended  with  impulses  to  steal; 
and  there  is  no  doubt  that  this  intensification  of  an  inheritance 
from  our  primitive  ancestry  may  be  the  sole  manifestation  of  the 
degeneracy  in  the  "cerebral  neurasthenic,"  such  as  Regis  de- 
scribes.    A  respectable  and  renowned  JSIew  York  physician  is 

1  Psychopathia  Sexualis,  Translation  by  Chaddock,  1892. 


102  MEDICAL    JURISPRUDENCE    OF   INSANITY. 

widely  known  to  be  unable  to  resist  an  opportunity  to  pocket  the 
instruments  of  his  medical  and  surgical  friends.  In  alleged 
kleptomania  cases  the  history  of  the  accused  and  that  of  his  or 
her  ancestry  should  be  thoroughly  investigated  as  to  physical 
and  mental  diseases. 

Arson  may  be  committed  by  alcoholics,  imbeciles,  paranoiacs, 
maniacs,  melancholiacs,  epileptics,  paretic  dements,  at  puberty 
and  during  the  insanity  of  adolescence,  or  even  by  terminal  de- 
ments. There  is  no  obsession  propensity  apart  from  insanity  that 
would  enable  an  otherwise  sane  person  to  plead  an  irresistible  im- 
pulse to  burn  property.  (See  Pyromania  in  the  chapter  on 
Degeneracy.) 

Forgery  has  been  committed  by  paranoiacs,  usually  by  pass- 
ing checks,  more  often  than  in  any  very  elaborate  way.  There 
could  be  a  lively  discussion  as  to  whether  some  instinctive  crim- 
inals do  not  border  closely  upon  moral  imbecility  in  their  capa- 
bilities for  crime  in  general  and  in  some  instances  of  forgery. 
That  theory  might  assist  to  explain  why  some  incorrigible  sons 
forge  their  fathers'  names,  even  with  the  danger  of  ruining  the 
family  fortunes,  and  the  culprits'  own  prospects  also. 

Assaults  are  prompted  in  the  insane  by  the  same  influences 
that  lead  to  homicides,  with  the  difference  between  the  sane  and 
insane  assault  that  murder  is  more  likely  to  be  the  intent  or  out- 
come of  insane  attacks. 

False  accusations.  Many  insane  after  recovery  may  be  un- 
able to  distinguish  accurately  what  was  purely  subjective,  in  the 
course  of  their  disease,  from  objective  experiences ;  and  their 
hallucinations,  illusions,  or  delusions  may  lead  to  mistakes  as  to 
persons  and  events  connected  with  their  insane  periods.  Owing 
to  this,  officials  of  asylums,  attendants,  and  others  have  been 
wrongfully  charged,  although  many  things  the  insane  tell  as  to 
what  happened  before  they  recovered  may  be  perfectly  true ;  but 
the  liability  to  false  memories  should  be  recognized  as  common 
after  recovery. 

During  the  height  of  the  disorder  many  insane  accuse,  not  only 
themselves,  but  others  also,  of  all  sorts  of  possible  and  impossible 
offenses,  and  often  with  a  plausibility  that  is  difficult  to  detect. 

Wrong  inferences  can  easily  be  made,  also,  as  what  a  patient 
may  have  done,  or  how  others  may  have  behaved  towards  the  in- 


CRIMINAL    CASES.  103 

sane  person.  For  instance,  a  maniacal  lady  talked  incessantly  for 
awhile  about  a  gentleman  whom  she  had  casually  met  but  once, 
and  what  she  said  easily  led  others,  who  were  unaware  of  the 
truth,  to  think  that  the  person  she  mentioned  was  responsible  for 
serious  contributions  to  her  sickness.  A  melancholiac  lady  also 
claimed  that  she  had  been  seduced,  and  her  family  was  only  de- 
terred from  rash  acts  against  the  suspected  seducer  by  her  recov- 
ery and  repudiation  of  her  accusations  as  insane,  without  any 
grounds  in  fact.  Mental  hysterical  and  pubescent  cases,  climacteric 
patients,  the  circular  insane,  and  imbeciles,  make  false  charges, 
and  the  first  named  is  particularly  libelous  and  inclined  to  stir  up 
scandal  by  anonymous  letter  writing  and  other  means,  even  to  the 
extent  of  forfeiting  life  itself  in  furtherance  of  such  designs. 

False  confessions  are  made  by  some  insane  persons  through 
similar  motives,  or,  at  times,  without  apparent  motive.  Melan- 
choliacs  seem  to  prefer  self-condemnation,  and  falsely  accuse 
themselves  of  being  sexually  indiscriminate  and  otherwise  culp- 
able. A  melancholic  lady  calmly  confessed  to  receiving  a  male 
friend  nightly  in  her  room ;  and  her  story  was  believed  against 
protests  and  explanations  to  her  family  and  priest.  Upon  recov- 
ery she  was  disgusted  with  them  for  having  listened  to  her  "  fool- 
ishness." 

Haslam,1  even  in  his  early  period,  narrates  cases  of  false  con- 
fessions to  murders  when  no  murder  had  been  committed. 

Hammond5  mentions  that  the  desire  for  notoriety  leads  sane 
hysterical  patients  to  make  false  confessions ;  and  Legrand  du 
Saulle3  had  previously  discussed  this  propensity  of  the  hysterical. 

Malicious  mischief,  or  criminal  prankishness,  may  be  traced  to 
numerous  kinds  of  insane  persons,  such  as  the  circular  insane 
cases,  hysterical,  maniacal,  etc., —  in  fact  nearly  every  variety; 
but  imbeciles  and  the  hysterical  insane  are  most  apt  to  be  guilty 
of  complicated,  annoying,  and  even  dangerous  and  destructive 
malicious  mischief,  sometimes  of  a  revolting  kind. 

Motive  in  crime.  Crimes  without  motive  are  particularly 
characteristic  of  some  insane,  but  many  irresponsible  patients  are 
quite  as  able  to  concoct  elaborately  planned,  deliberate,  premedi- 

1  Medical  Jurisprudence  as  it  Eelates  to  Insanity,  1817. 
8  Treatise  on  Insanity. 
3  Les  Histeriques. 


104  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

tated,  designed,  and  ingeniously  contrived  crimes  of  almost  all 
kinds. 

Ray1  says  in  this  connection:  "What  must  be  thought  of  the 
attainments  of  those  learned  authorities  in  the  study  of  madness, 
who  see  in  the  power  of  systematic  design  a  disproof  of  the  ex- 
istence of  insanity,  when  from  the  humblest  menial  in  the  service 
of  a  lunatic  asylum  they  might  have  heard  of  the  ingenuity  of 
contrivance  and  adroitness  of  execution  that  often  characterize 
the  plans  of  the  insane.  If  the  mind  continues  rational  on  some 
Fuhjects  it  is  no  more  than  what  might  be  expected  that  this  ra- 
tionality should  embrace  the  power  of  design;  since  a  person 
could  not  properly  be  called  rational  on  any  point  in  regard  to 
which  he  had  lost  his  customary  ability  toform  his  plans  and  de- 
signs for  the  future.  These  views  are  abundantly  confirmed  by 
every  day's  observation.  The  sentiment  of  cunning,  too.  which 
is  necessary  to  the  successful  execution  of  one's  projects,  holds 
but  a  low  place  in  the  scale  of  the  mental  faculties,  being  a 
merely  animal  instinct,  and  is  oftentimes  observed  to  be  rendered 
more  active  by  insanity,  so  as  to  require  the  utmost  vigilance  to 
detect  and  defeat  its  wiles.  One  who  is  not  practically  acquainted 
with  the  habits  of  the  insane  can  scarcely  conceive  of  the  cunning 
which  they  will  practice  when  bent  on  accomplishing  a  favorite 
object." 

Instigation  to  crime  is  common  among  criminals,  and  any  de- 
signing, unscrupulous  person  would  be  apt  to  avail  himself  of 
defective  intelligence  in  others  to  carry  out  his  plans.  In  civil 
cases  undue  influence  is  paralleled  by  instigation  to  crime.  Im- 
beciles, or  even  idiots,  are  liable  to  the  control  of  evil  persons, 
and  the  acts  of  a  paranoiac  may  be  directed  or  diverted  to  certain 
crimes  by  the  prompting  of  others.  An  insane  degenerate  was 
arrested  in  189G  in  an  endeavor  to  carry  out  the  directions  of  a 
clairvoyant  who  had  suggested  the  murder  of  Mr.  Pullman,  of 
Chicago.  Multitudes  of  defectives  are  controlled  by  more  intelli- 
gent knaves,  and  a  modern  phase  of  criminal  influence  appears 
connected  with  hypnotism. 

Hypnotism.  The  "grain  of  truth"  is  often  hidden  in  immeas- 
urable quantities  of  the  chaff  of  credulity,  superstition,  fraud, 
and  chicanery.     The  Bontgen  process  of  skiagraphy  consists  of 

4  Op.  cit.  33. 


CRIMINAL    CASES.  105 

an  electrochemical  influence  able  to  penetrate  some  substances 
and  not  passing  through  others ;  it  is  somewhat  analogous  to 
magnetism,  which  is  not  interrupted  by  some  interposed  materi- 
als. Yet  in  spite  of  the  simplicity  of  the  phenomena  to  anyone 
with  a  rudimentary  knowledge  of  physics,  the  popular  conceptions 
of  the  matter  are  absurd,  and  mountebanks  make  the  most  ex- 
travagant claims  of  even  supernatural  discoveries  based  upon 
skiagraphy.  In  the  same  way  the  Indian  medicine-man  has  im- 
posed upon  his  fellow  savages  with  mirrors  and  seidlitz  powders, 
because  they  are  unfamiliar  with  such  things ;  informing  them 
that  their  souls  are  pictured  in  the  looking-glass,  and  that  water 
can  be  made  to  boil  without  heat,  by  means  of  the  effervescing 
substance. 

Divesting  the  subject  of  hypnotism  of  the  verbiage  of  its  litera- 
ture we  find  that  from  unknown  periods,  in  India  and  Egypt  and 
elsewhere,  there  were  persons  who  professed  to  be  able  to  influ- 
ence others  in  mysterious  ways  allied  to  those  more  recentl}1- 
practised  under  the  names  of  "  mesmerism,"  "  animal  magnetism," 
"  hypnotism,"  and  "  mental  suggestion." 

In  1815  Abbe  Faria,  in  Paris,  showed  that  Mesmer's  process 
depended  upon  the  subjects,  and  had  no  reference  to  any  mys- 
terious power  of  another  ;  and  in  1841  Dr.  Braid,  of  Manchester, 
England,  studied  La  Fontaine's  experiments  with  the  same  result. 
Later  the  subject  was  investigated  by  Carpenter,  Laycock, 
Simpson,  and  Mayo  in  a  conscientious,  scientific  way,  but  owing 
to  the  deceptions  and  preposterous  assertions  of  others  the  study 
was  dropped,  because  of  its  unpopularity.  A  "  Dr."  Grimes 
practised  what  is  called  electro-biology  in  1842,  in  the 
United  States.  Broca,  after  this,  took  up  the  investigation, 
and  Moll  used  it  to  perform  some  painless  operations  in  surgery. 
Liebault  in  1866  published  a  book  recommending  the  use  of 
some  such  influences  in  the  treatment  of  disease.  Czermak  in 
1872  experimented  on  animals,  and  Bichet  took  up  the  subject  in 
1875,  followed  by  Charcot,  who  began  his  hypnotic  clinics  about 
1878,  and  founded  what  is  known  as  the  Paris  school  of  hyp- 
notism, which  claims  that  the  state  is  a  distinctly  diseased  condi- 
tion and  its  various  alleged  forms  are  merely  symptoms  or 
phases,  such  as  lethargy,  catalepsy,  and  somnambulism ;  that  hyp- 
notism is  a  disease  closely  allied  to  hysteria,  and  peculiar  to  per- 


106  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

6ons  with  depressed  nervous  organizations ;  that  but  few,  besides 
hysterical  persons,  can  be  hypnotized. 

Following  Liebault's  suggestion,  Bernheim  and  others  founded 
what  is  known  as  "the  school  of  Nancy,"  from  the  name  of  the 
town  in  France,  where  the  matter  is  studied ;  and  though  it  is 
suspected  by  many  intelligent  students  that  Bernheim  and  Lie- 
bault  may  be  mistaken  in  some  of  their  conclusions,  their  candor 
and  honesty  are  not  doubted.  The  Nancy  school  maintains  that 
the  hypnotic  state  is  physiological  and  closely  allied  to  natural 
sleep,  which  differs  in  degree  only,  and  is  not  divisible  into  phases; 
that  mental  suggestion  is  the  keynote  to  the  entire  phenom- 
ena, whether  the  subject  suggests  what  shall  be  done  to  him- 
self, or  whether  the  suggestion  is  made  by  another ;  that  under 
favorable  circumstances  90  per  cent  of  all  persons  may  be  hyp- 
notized, and  that  hypnotism  has  some  value  in  curing  both  func- 
tional and  organic  diseases. 

There  are  essential  points  of  difference  between  these  two 
French  schools.  They  disagree  as  to  whether  the  hypnotic  is  a 
diseased  or  a  healthy  state  ;  the  phases  of  one  school  are  regarded 
as  mere  degrees  by  the  other ;  one  holds  to  the  physical  and  the 
other  to  the  mental  origin  of  the  phenomena ;  the  Paris  school 
claiming  that  but  few  are  susceptible,  while  the  Nancy  school 
asserts  that  nearly  everyone  is  hypnotizable. 

Considering  the  fact  that  some  animals  can  be  reduced  to  this 
unconscious  condition,  it  is  likely  that  a  low  intelligence,  at  least, 
is  capable  of  being  influenced  in  this  way  by  another,  and  a  fu- 
sion of  both  schools  could  be  made  on  the  supposition  that  both 
are  partly  right  and  partly  wrong. 

It  would  be  of  prime  importance  medico-legally,  were  it  possible, 
to  determine  whether  one  person  could  cause  another  to  commit 
a  crime  against  his  will.  Degenerates,  either  of  the  criminal  or 
the  insane  type,  would  be  most  easily  influenced  in  this  way.  It  is 
known  that  mere  suggestion,  through  reading  about  a  crime  or 
suicide,  has  made  imitators  among  the  ill  balanced;  but  it  has 
not  yet  been  proved  that  an  innocent  person  could  be  thus  influ- 
enced by  another  to  commit  crime.  Therefore  the  presumption 
remains  that  anyone  who  commits  a  crime  through  hypnotism  or 
other  suggestion  is  fully  capable  of  so  doing  without  such 
prompting,  and  that  the  act  is  one  consistent  with  his  disposition, 


CRIMINAL    CASES.  107 

and  tli at  the  suggestion  would  have  been  resisted  had  the  person 
been  disinclined  to  the  offense  naturally  ;  and  the  question  is  open 
as  to  whether  such  a  hypnotized  criminal  is  not  a  principal  or  at 
least  particeps  criminis.  The  opinion  prevails  among  the  more 
conscientious  and  reputable  students  of  hypnotism,  that  a  person 
cannot  be  induced,  by  mental  or  other  suggestion,  such  as  the 
hypnotic,  to  commit  a  crime  against  his  will. 

In  1895  Hay  ward  was  hanged  in  St.  Paul,  Minn.,  accused  of 
having  induced  Blitz  by  hypnotic  suggestion  to  murder  Miss 
Ging.     Blitz  was  sent  to  the  penitentiary  for  life. 

Faith  healers,  Christian  scientists,  and  others  who  impress  the- 
imagination  sufficiently,  occasionally  effect  cures  of  minor  ail- 
ments, but  all  organic  troubles  are  beyond  the  reach  of  such 
means  of  cure,  as  is  also  the  loss  of  an  eye  or  an  amputated  leg. 

Hypnotism  may  influence  some  patients  to  anaesthesia,  so  that 
surgical  operations  can  be  performed  without  pain,  but  certainly 
such  possibilities  are  rare,  or  it  would  come  into  more  general  use. 

There  is  a  division  of  opinion  as  to  the  harmfulness  of  hyp- 
notism. It  is  probable  that  it  harms  some,  and  does  not  so  affect 
others.  At  any  rate  there  is  enough  danger  to  make  consider- 
able caution  necessary,  particularly  as  to  repetitions. 

A  newspaper  suggested  that  a  prisoner  might  exculpate  himself 
by  claiming  that  he  had  been  hypnotized  by  one  who  had  also 
been  hypnotized  to  do  the  hypnotizing. 

Prof.  Jos.  Jastrow,  in  a  popular  science  article,  remarked  that 
ic  the  possibilities  of  deception  are  so  many  and  various  that  an 
extensive  technical  knowledge  of  the  methods  of  conjurers  and  of 
the  psychology  of  belief  is  indispensable  to  the  right  of  opinion, 
which  too  often  is  regarded  as  a  natural  prerogative." 

Medical  evidence.  Attorneys  select  experts  to  assist  them  in 
presenting  their  theories  as  favorably  as  possible.  Occasionally 
a  judge  appoints  an  expert,  usually  by  agreement  of  the 
contending  parties.  Bias  is  unavoidable,  and,  indeed,  it  is  ex- 
pected, when  one  side  employs  the  expert ;  but  the  extent  of  the 
bias  will  depend  upon  the  personal  character  of  the  expert. 
Some  are  too  conscientious  to  assist  attorneys  against  their  con- 
victions, and  such  will  refuse  their  services,  at  times,  under  any 
3onsideration ;  while  others,  irrespective  of  knowledge  or  ignor- 
ince,  pride  themselves  on  their  "practicality''  in  this  money- 


108  MEDICAL    JURISPRUDENCE    OF    INSANITY". 

making  world,  and  will  espouse  any  sort  of  a  cause  for  the  sake 
of  a  fee.  It  lias  been  suggested  that  there  should  be  a  board  of 
experts  in  insanity  appointed  by  the  governor,  or  other  political 
official ;  that  the  court  should  always  select  the  expert,  and  Judge 
Hornblower  thought  that  experts  should  be  created  by  the 
supreme  court ;  and  various  other  remedies  for  the  existing  evils 
of  the  present  system  have  been  urged  by  people  little  accus- 
tomed to  study  sociological  matters  in  the  light  of  facts.  Con- 
sidering the  haphazard  manner  in  which  the  average  person 
selects  his  family  physician,  and  the  notorious  financial  success  of 
advertising  charlatans,  neither  politicians  nor  the  judiciary  are 
any  more  likely  to  escape  imposition  by  pretense  than  is  the 
populace.  Such  methods  of  selection  would  insure  additions 
to  the  office-seeking  hordes,  and  foster  intriguery  for  place,  which 
invariably  foists  the  incapable  and  dishonest  into  positions 
ostensibly  created  for  the  capable  and  conscientious.  Such 
"  reforms  "  are  as  sapient  as  the  proposition,  made  in  all  serious- 
ness, that  the  legislature  should  (in  violation  of  our  constitutional 
provision  against  sumptuary  laws)  prescribe  uniforms  that  would 
enable  the  people  to  distinguish  first,  second,  and  third  class 
physicians.  The  rankest  and  most  blatant  ignoramus  would  soon 
be  parading  in  gold  lace,  while  the  learned  and  modest  medical 
man  would  be  in  sackcloth.  Not  that  the  judges  would  know- 
ingly select  incompetent  or  otherwise  improper  experts,  but  events 
prove  that,  however  willing  the  judge  may  be  to  select  a  suitable 
medical  examiner,  his  opportunities  and  leisure  for  exercising 
judgment  in  such  matters  are  no  better  than  those  of  others. 

Conditions  in  one  country  might  make  practicable  what  would 
fail  miserably  if  attempted  in  another.  For  instance,  in  some  of 
the  older  countries  in  Europe  reputation  for  special  learning  is 
apt  to  be  bestowed  where  it  is  deserved ;  the  settled  conditions  in 
such  places  admit  of  a  keener  discrimination  in  this  respect ;  but 
in  America,  with  its  kaleidoscopic  changes  and  sudden  formation 
of  fresh  centers  of  learning,  its  fiery  competition,  and  general 
"  newness,"  many  a  gifted  and  able  person  is  far  less  widely 
known  and  respected  than  is  the  energetic  politician  whose 
methods  to  secure  an  undeserved  reputation  require  so  much  un- 
divided attention  as  to  preclude  the  possibility  of  research,  study, 
or  anything  but  the  most  superficial  acquirements  in  other  than 
fields  of  intriguery. 


CRIMINAL    CASES.  109 

While  the  prevalent  custom  of  allowing  lawyers  to  select  their 
own  experts  is  objectionable  in  some  respects,  a  change  would 
introduce  worse  evils  not  anticipated. 

Eventually  an  improved  process  will  be  evolved,  when  the  condi- 
tions render  it  possible  ;  and  there  appears  to  be  nothing  better 
than  to  interpose  no  new  scheme  in  the  way  of  its  development. 

A  judge  of  the  Federal  court  of  Chicago  made  some  caustic 
statements,  upon  which  a  newspaper  thus  comments  : 

"  Judge  Grosscup's  remarks  on  expert  testimony  will  strike 
many  persons  as  containing,  unfortunately,  altogether  too  much 
truth,  though  there  was  no  need  of  his  limiting  the  application 
to  Chicago.  The  same  thing  is  true  in  other  places.  Judge 
Grosscup  said : 

"  '  Expert  testimony  in  Chicago  is  largely  on  the  market,  and 
I  have  come  to  regard  it  with  very  little  favor  unless  I  know  the 
competency  and  integrity  of  the  witnesses  and  their  disinterest- 
edness in  the  case  in  which  they  testify.'  Of  course  there  may 
be  honest  difference  of  opinion  among  experts.  But,  unques- 
tionably, a  great  deal  of  the  expert  testimony  which  is  brought 
to  the  attention  of  the  public  looks  as  if  it  might  have  been  pur- 
chased to  fit  the  particular  needs  of  a  case,  like  the  services  of 
an  attorney." 

The  keynote  of  the  situation  is  suggested  in  knowing  "  the 
competency  and  integrity  of  the  witnesses."  Lawyers  should 
qualify  themselves  to  expose  incompetency  and  want  of  integ- 
rity, and  make  it  part  of  their  duty  to  their  clients  to  seek  the 
best  means  of  doing  so.  No  one  should  be  allowed  to  impose 
upon  the  jury  false  appearances  of  proficiency  ;  as,  when  surgeons 
testify  in  insanity  cases,  or  when  general  practitioners  attempt 
to  diagnosticate  the  intricacies  of  eye  and  ear  diseases,  or 
pass  upon  indications  of  insanity,  which  they  have  had  no  opportu- 
nity to  study.  Certainly  it  would  be  proper  to  inquire  how  the 
medical  witness  had  secured  the  requisite  knowledge  claimed,  the 
amount  of  time  this  occupied,  and  the  circumstances  under  which 
the  information  was  secured,  that  would  entitle  his  opinion  to 
respect. 

Books  of  science  are  not  admissible  on  the  ground  that  the 
author  cannot  be  cross-examined,  unless  serving  as  a  witness  ; 
but  it  would  be  eminently  proper  to  ask  the  expert  what  books 


110  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

he  had  read  upon  the  subject  under  discussion,  and  this  would  open 
up  a  means  of  cross-examining  him  upon  his  knowledge  of  such 
writings. 

Among  what  may  properly  be  called  tricks  of  the  counsel  is 
the  endeavor  to  pin  the  witness  down  to  categorical  answers. 
Often  a  mere  yes  or  no  to  questions  needs  qualifying,  and  the 
witness  lias  the  right  to  express  his  opinion  in  his  own  way.  In 
this  attempt  to  be  understood  he  will  be  sustained  by  the  court, 
who  will  respect  an  expert  all  the  more  for  cautious  and  thought- 
ful replies,  when  such  are  necessary.  A  witness  was  once  chal- 
lenged to  ask  a  question  that  could  not  be  answered  "  yes "  or 
"  no."  "  Are  you  beating  your  wife  yet  P — was  promptly 
offered  for  experiment. 

The  court  and  lawyers  do  not  lose  dignity  by  claiming  time  for 
preparation,  and  it  should  be  understood  that  an  expert  may  not 
be  ready  to  make  responses  at  once  to  all  questions,  many  of 
which  are  intended  as  traps  to  embarrass  and  discredit  the  wit- 
ness. So,  a  question  should  not  be  answered  until  it  is  under- 
stood. The  use  of  technical  terms  should  be  avoided,  and  where 
unavoidable  the  term  should  be  explained.  Some  physicians  are 
great  sinners  in  the  excessive  use  of  technicalities ;  a  break  is  the 
"  solution  of  continuity ;"  everything  mental  is  "  psychic ;"  in- 
sanity is  a  "  psychosis,"  and  tying  becomes  "  ligation,"  etc.  It 
can  be  laid  down  as  a  fair  rule  that  the  more  one  knows  the 
easier  it  becomes  for  him  to  explain  himself  in  simple  language. 
But,  at  times,  it  is  impossible  to  do  this,  for  a  technical  expression 
may  embody  what  an  education  is  required  to  understand. 
The  sailor  names  his  ropes,  and  every  profession,  including  that 
of  law,  has  special  terms  which  can  sometimes  be  dispensed  with 
or  explained,  but  many  times  must  be  retained.  In  addition 
to  demanding  simple  language  at  times  when  technical  terms 
are  indispensable,  the  lawyer  will  insist  upon  "common  sense" 
views  of  things  of  which  uneducated  "  common  sense "  can 
form  no  conception.  How  would  the  lawyer  or  the  court 
regard  the  "  common  sense "  views  of  an  ignorant  juryman  on 
some  involved  legal  question  ?  "  Common  sense "  verdicts  are 
often  wonderful  conceptions  of  justice  and  law. 

A  symptom  may  be  mentioned,  and  the  attorney  will  ask  if- 
that  constitutes  insanity ;  in  this  way  every  symptom,  one  by 


CRIMINAL    CASES.  Ill 

one,  can  be  excluded  as  not  necessary  to  insanity.  It  is  the  syn- 
drome, or  group  of  symptoms- — the  entire  evidence — that  permits 
a  diagnosis ;  for  single  symptoms  may  be  absent,  or  the  same 
symptom  may  be  present  in  many  diseases.  Thus,  cough  does 
not  constitute  consumption,  yet,  with  other  things,  it  is  symptom- 
atic of  that  disease.  The  best  reply  is  that,  taken  in  connection 
with  other  symptoms,  the  matter  mentioned  would  indicate  insan- 
ity. Sanity,  by  this  exuviating  process,  can  also  be  as  readily 
disproved ;  for  there  is  no  one  characteristic  that,  taken  by  itself, 
is  proof  of  mental  soundness. 

Avoidance  of  the  bogs  of  definitions  has  been  already  advised 
in  an  earlier  chapter.  Never  get  into  a  metaphysical  discussion 
with  the  court  or  counsel  is  ancient  and  good  advice. 

Experts  are  asked  if  crime  and  insanity  are  not  identical,  and 
if  all  men  are  not  insane  in  some  way.  It  is  fair  to  retort  that 
standards  of  such  things  vary  according  to  the  point  of  view,  but 
from  legal  as  well  as  medical  standpoints  all  men  are  not  insane, 
nor  are  crime  and  insanity  the  same.  Such  considerations  are  as 
metaphysical  as  that  nothing  exists  in  reality,  everything  is  sub- 
jective, etc.  There  is  a  borderland  in  such  matters  which 
is  very  debatable  ground,  but  as  there  is  no  hope  of  present  set- 
tlement of  the  disputed  points  involved,  it  is  well  to  avoid  useless 
argument  concerning  them,  irrelevant  to  the  matter  on  trial. 

The  utmost  candor  in  statements  will  secure  respect  for  a  wit- 
ness and  his  opinions,  where  concealment  and  adroit  answers  are 
most  apt  to  be  unserviceable  and  produce  contempt  and  discred- 
it the  value  of  the  testimony.  It  is  difficult  for  some  lawyers  to 
comprehend  this  simple  psychological  fact,  and  medical  wit- 
nesses have  been  accused,  by  attorneys  who  employ  them,  of 
doing  harm  to  their  side  by  admitting  certain  facts  which  it 
would  be  dishonest  to  deny.  Such  acknowledgments  increase 
the  respect  of  the  court  and  jury  for  what  the  expert  has  to  say 
on  the  main  questions,  and  an  honest  side  cannot  be  better  served 
than  by  frankness  of  its  witnesses. 

Hypothetical  case.  It  was  formerly  the  custom  to  ask  the  ex- 
pert opinions  based  on  the  entire  evidence,  but  as  it  was  claimed 
that  this  practically  put  the  witness  in  the  place  of  the  jury,  the 
method  of  hypothetical  questioning  was  adopted.  This  is  one 
of  the  few  instances  where  an  old  method  was  the  better  one. 


112  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

A  vastly  more  intelligent  opinion  can  be  formed  by  knowing  all 
there  is  to  know  about  any  matter,  than  through  culling  and  col- 
oring evidence  by  means  of  the  hypothetical  question.  Jurists 
are  generally  agreed  as  to  its  unfairness,  especially  as  it  presents 
but  one  side  of  the  case. 

It  would  be  well  to  append  to  every  such  mode  of  eliciting 
expert  opinion  the  further  statement,  when  practicable :  "  And 
taking  into  consideration  your  personal  examination  of  the  indi- 
vidual in  contest."  If  objection  is  made  to  this  as  confusing  the 
hypothetical  with  the  real  issue,  then  the  results  of  the  physician's 
examination  in  evidence  could  be  written,  and  be  made  a  part  of 
the  hypothetical  case. 

Responsibility.  Edw.  M.  Hyzer,1  of  the  Janesville,  "Wisconsin, 
bar,  states  that,  "  as  civilization  advances  general  rules  become  pri- 
marily and  comparatively  of  less  importance,  and  greater  attention 
is  given  to  particular  instances.  The  inductive  method  of  rea- 
soning has  led  to  more  careful  investigations,  definitions,  and 
classifications  of  particular  facts.  This  method  has  led  us  to  par- 
ticularize, and  has  taught  the  importance  of  the  smallest  fact. 
Facts  have  become  dignified,  and  we  have  come  to  respect  and 
appreciate  their  great  importance  in  the  determination  of  all 
questions. 

"In  the  infancy  of  government  general  rules  were  thought 
sufficiently  just  to  be  applicable  to  all  instances,  but  all  acts  were 
measured  by  them  without  reference  to  the  peculiarities  of  facts 
in  individual  cases.  Eights  of  persons  were  considered  justly 
determined  by  a  reference  to  the  governmental  generalizations  of 
which  only  early  society  was  capable. 

"  But  as  we  advance,  the  tendency  is  to  approach  more  nearly 
to  individual  justice  and  individuals ;  as  we  come  to  divide,  de- 
fine, and  classify  like  facts,  they  assume  a  greater  importance. 
The  smallest  right  is  assuming  its  proper  dignity,  and  the  slight- 
est differences  in  cases  which  come  before  social  tribunals  are 
gradually  becoming  cognizable.  Society  is  ceasing  to  measure 
right  and  wrong  and  responsibility  by  magnificent  generalities ; 
and  its  tendency,  its  effort,  is,  or  is  coming  to  be,  to  do  justice  ac- 
cording to  the  facts  before  it.     '  Sanity  and  insanity  are  to  be 

'Medico-Legal  Journal,  New  York,  VIE.  1,  June,  1889.  Prize  essay 
N.  Y.  Medico-Legal  Society,  1888. 


CRIMINAL    CASES.  113 

measured  by  differences  or  changes  of  habit,  taste,  and  disposi- 
tion.' " 

In  criminal  law  the  term  "responsibility"  means  liability  to 
legal  punishment ;  and  as  the  law  holds  that  the  insane  are 
not  responsible,  the  entire  matter  of  responsibility  is  merged  in 
the  question  :     Who  is,  and  who  is  not,  insane  ? 

During  the  middle  ages,  insanity  was  but  little  regarded  by  the 
law,  though  in  Roman  jurisprudence  the  principles  were  simple 
and  plain,,  the  insane  being  recognized  as  incapable  of  consent  or 
voluntary  action,  and  they  could  incur  no  responsibility  by  their 
own  acts.  The  plea  of  insanity  in  England,  until  near  the  beginning 
of  the  nineteenth  century,  was  generally  unavailing,  except  in 
extreme  cases.  The  fact  of  insanity  may,  in  the  law,  exclude 
responsibility  for  crime,  invalidate  other  legal  acts,  and  place 
property  and  persons  under  control  and  restraint. 

In  England  the  recognition  of  irresponsibility  of  the  insane, 
with  a  theory  of  limitations,  was  first  enunciated  by  Hale,1  and 
subsequent  differences  of  opinion  on  matters  pertaining  to  re- 
sponsibility involved  a  consideration  of  the  whole  matter  of  in- 
sanity, from  more  or  less  erroneous  grounds  of  observation.  The 
different  tests  of  insanity,  mentioned  in  chapter  II.,  Definitions, 
are  closely  related  to  responsibility,  as  faulty  generalizations  in 
this,  as  well  as  in  other,  related  matters,  would  cause  some  insane 
persons  to  be  considered  as  responsible  for  crimes. 

Many  alienists  regard  the  question  of  responsibility  in  criminal 
cases  as  pertaining  strictly  to  the  law,  and  therefore  unnecessary 
for  them  to  consider.  Griesinger2  expresses  himself  on  this 
point :  "  When  the  question  of  responsibility  is  raised  it  has 
always  hitherto  been  a  customary  concession  by  the  medical  jurist 
to  answer  it.  From  the  nature  of  the  question,  however,  the  phy- 
sician is  not  obliged  to  give  any  opinion  upon  these  wholly  judi- 
cial matters,  but  only  to  furnish  the  judge  or  jury  who  decide 
these  questions,  with  the  facts  fully  digested  relative  to  the  case. 
The  physician  can  also,  if  it  be  his  interest,  refuse  to  answer  the 
question  of  responsibility ;  and  I  myself  have,  in  a  celebrated  case, 
declared  that  if  the  question  of  responsibility  were  put  to  me,  I 
would  not  answer  it,  as  being  extra-medical.     It  was  accordingly 

1  Pleas  of  the  Crown,  chap.  2. 

2Meutal  Pathology  and  Therapeutics,  3d. 


114  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

not  put.  What  other  questions  may,  then,  be  legitimately  pro- 
posed to  the  physician  ?  Evidently,  in  most  cases,  questions  like 
the  following:  Whether  disease  exists  which  disturbs  the  mental 
activity  generally,  and  specially  suspends  liberty  of  will ;  or,  as 
degrees  must  here  be  admitted,  whether  to  a  greater  or  less  ex- 
tent it  has  limited  it,  or  could  have  done  so.  By  answering  this 
question  the  physicians  keep  within  their  own  sphere,  and  it  con- 
tains all  the  essentials  that  can  be  learned  from  them.  For  the 
physician,  who  is  a  competent  judge,  it  is  impossible  in  the  pres- 
ent state  of  science  to  give  a  definite  answer  to  this  question,  and 
therefore  he  should  declare  it,  and  without  respect  to  conse- 
quences. He  has  no  other  interest  than  that  of  truth,  and  there- 
fore should  not  meddle  with  matters  which  do  not  belong  to  his 
office,  and  for  which  he  is  not  responsible  :  for  example,  whether 
the  law  should  punish  those  who  are  evidently,  to  some  extent, 
insane ;  or  what  degree  of  punishment  should  be  inflicted  upon 
the  accused.  The  judges  or  jury  are  not  bound  by  the  opinion 
of  the  medical  man.  which  is  but  one  element,  among  others,  to 
aid  them  in  coming  at  a  decision.  It  would  be  fearful  if  the 
medical  evidence,  often  so  bad  and  contradictory,  had  a  decisive 
influence  upon  the  issue  of  a  criminal  process.  It  were  well  that 
physicians  could  see  that  hereby  the  influence  of  their  science  is 
limited  ;  the  more  strictly  they  keep  their  own  sphere,  into  which 
none  can  follow  them,  the  greater  will  be  their  influence.  The 
author  speaks  from  forensic  experience." 

Sir  James  Crichton  Browne,  an  eminent  Euglish  alienist,  in  a 
lecture  on  this  topic,  remarks  :'  "  There  are  some  prisoners  and 
convicts  concerning  whose  insanity  no  doubt  can  arise,  even  in 
the  minds  of  the  laity ;  but  there  are  others  whose  crimes,  al- 
though apparently — that  is,  to  the  ordinary  observer — committed 
whilst  in  full  possession  of  will  power,  are  yet  traceable  by  the 
expert  to  diminution  of  voluntary  control.  If  happily  these 
latter  escape  with  their  lives,  'to  be  detained  during  Her  Maj- 
esty's pleasure,'  it  is  obvious  that  a  complete  record  of  their  acts 
and  demeanor  during  their  incarceration  should  not  only  be  pre- 
served but  published,  in  confirmation  of  the  ground  upon  which 
they  were  sent  to  enforced  confinement  instead  of  to  the  gallows. 
If  this  were  done,  there  would  be  less  disposition  than  there  is  at 

London  Lancet,  July  28,  and  August  4,  1888. 


CRIMINAL    CASES.  115 

present  to  hesitate  to  accept  the  opinion  of  expert  medical  wit- 
nesses upon  the  relation  of  insanity  to  crime.  Whilst,  however, 
the  recorded  history  of  so-called  criminal  lunatics  ends  with  their 
public  career,  there  will  necessarily  be  a  great  tendency  to  regard 
with  distrust  the  plea  of  irresponsibility  set  up  in  answer  to  a 
charge  of  wilful  murder." 

The  Lancet  editorially  states  :  "  Perhaps  the  most  cogent  re- 
marks in  Sir  James  Crichton  Browne's  lecture  were  those  in 
which  he  attacked  and  demolished  the  tenets  held  by-Lord  Bram- 
well  upon  the  most  fitting  jury— lay  or  medical— to  decide  upon 
a  man's  insanity.  As  is  well  known,  his  lordship  holds  the  opin- 
ion that  common  sense  is  sufficient  to  determine  the  question  at 
issue,  and  that  there  is  no  necessity  for  special  expert  knowledge. 
Nor  is  Lord  Bramwell  singular  in  this  opinion,  for  not  long  since 
we  had  occasion  to  contest  the  common-sense  ruling  of  one  of  our 
judges  that  the  question  of  the  prisoner's  insanity  was  one  for  the 
jury,  and  not  for  the  medical  witness." 

Whereupon  Dr.  C.  H.  Hughes  comments  :  >  "  The  <  common- 
sense'  criterion  of  mental  aberration  is  simply  nonsense.  'Com- 
mon sense,' unenlightened  and  unswayed  by  scientific  observation 
and  deduction,  has  successively  ignored  and  controverted  all  the 
observations  and  discoveries  of  Copernicus,  Galileo,  Columbus, 
and  Newton,  to  those  of  Galen,  Harvey,  Jenner,  and  Koch,  until 
men  of  uncommon  sense  and  rare  powers  of  observation  were 
numerous  enough  to  come  forward  and  confirm  the  uncommon 
idea  and  secure  for  it  respectful  consideration.  Preconceptions 
are  dislodged  slowly  from  the  human  mind.  Habits  of  thought 
that  have  become  automatic,  and  formulas  of  precedent  that 
have  become  habitual  to  either  legal  or  medical  authority,  are 
grudgingly  abandoned." 

Some  alienists  have  also  added  to  the  confusion  concerning 
responsibility.  Legrand  du  Saulle2  admits  total  irresponsibility 
only  in  cases  of  general  insanity.  In  cases  of  "  partial  alienation  " 
the  insane  person  should  not  be  held  responsible,  according  to 
this  author's  views,  "  when  he  has  acted  under  the  influence  of 
the  delusion,  but  should  be  so  considered  when  the  impulse  under 
which  he  acted  is  foreign  to  the  sphere  of  his  maniacal  con- 
ception." 

1  Alienist  and  Neurologist,  Jan.  1889. 

2  Traite  de  Medecine  Legale,  Paris,  1886. 


116  MEDICAL    JURISPPOJDEXCE    OF   INSANITY. 

Falret'  shows  the  fallacy  of  this  assumption  in  asking  :  "  How 
can  it  be  affirmed  that  a  given  act,  accomplished  at  a  certain 
moment,  is  totally  foreign  to  the  insane  conception  of  the  indi- 
vidual, while  another  act  committed  at  the  same  time  must  be 
ascribed  to  a  morbid  impulse." 

The  partial  insanity  referred  to  has  included  all  forms  where 
there  appeared  to  be  a  remnant  of  the  intellect  left;  the  idea 
being  that  there  could  be  complete  insanity  only  when  the  entire 
body  and  mind  were  overwhelmed  by  mental  disease. 

In  Blakely 's  Will  Case?  a  medical  witness  testified  that  in  his 
opinion  there  was  no  such  thing  as  partiaL  insanity,  that  a  man 
was  either  sane  or  insane.  The  court  held  that  this  might  be 
true  in  the  light  of  medical  science,  but  was  not  true  in  law. 

It  may  be  a  contention  over  mere  terminology,  but  unfortu- 
nately the  expression  "partial  insanity"  invariably  causes  serious 
misconceptions  as  to  responsibility.  A  man  may  be  partially  dis- 
abled by  having  an  arm  cut  off,  but  to  some  extent  he  may  be  com- 
pensated for  his  deformity  by  increased  use  of  the  other  arm. 
There  is  but  one  mind  in  the  individual,  and,  as  Krafft-Ebing 
claims,  it  must  be  considered  as  a  whole,  and  not  as  made  up  of 
independent  faculties. 

Ray3  notes  that  the  practice  of  the  English  courts  in  regard  to 
"partial  insanity"  has  been  regulated  by  no  settled  principles, 
and  cites  the  Greenwood  and  other  cases,  with  an  extensive 
argument,  on  the  impropriety  of  holding  to  the  possibility  of  a 
"  partial  insanity." 

An  insane  person  may  know  right  from  wrong,  as  ordinarily, 
conceived,  and  may  have,  in  addition,  the  power  to  choose  be- 
tween acts  in  which  conceptions  of  right  or  wrong  are  involved ; 
but  he  may  also  regard  himself  as  above  the  ordinary  rules  regu- 
lating human  conduct ;  just  as  a  sentinel  on  duty  cannot  feel 
guilty  of  the  murder  of  one  he  has  killed  in  the  act  of  forcing  his 
guard.  So  the  paranoiac  expects  applause  for  what  he  considers 
a  justified  infraction  of  ordinary  laws,  and  appears  not  to  be  able 
to  understand  why  his  act  is  not  approved.  ]S"or  is  it,  necessary 
that  the  insane  act  should  be  so  closely  related  to  expressed  de- 

1  Diet.  Erie,  des  Sci.  MeU,  HE. 

2  48  Wis.  294. 
2  Op.  cit.  231. 


CRIMINAL    CASKS.  117 

1  visions  as  to  leave  the  presumption  of  responsibility  for  acts  un- 
connected therewith  ;  for  if  one  is  sick,  at  any  moment  additional 
symptoms  may  arise,  and  it  is  impossible  to  predict  that  a  sick- 
ness may  not  take  a  new  direction  directly  consequent  upon  the 
extension  of  the  sickness  that  was  previously  limited.  The  soli- 
darity of  the  mind  can  be  compared  to  that  of  the  body.  Heart 
trouble,  through  insufficient  circulation,  can  secondarily  involve 
the  lungs,  liver,  and  kidneys,  and  dropsy  follows  upon  heart, 
liver,  or  kidney  disorganization.  The  spleen  is  often  engorged 
when  the  liver  is  at  fault,  and  a  stomach  disease  can  be  secondarily 
caused  by  intestinal,  liver,  or  brain  disorder.  In  the  ''partial" 
sickness  of  d}Tspepsia  the  entire  body  and  mind  are  affected,  and 
when  a  single  mental  faculty  is  impaired  any  and  all  other  brain 
workings  are  in  jeopardy. 

Chief  Justice  Shaw,  in  1814,  said  : '  "This  [monomania]  may 
operate  as  an  excuse  for  criminal  act  .  .  .  when  the  delusion 
is  such  that  the  person  under  its  influence  has  a  real  and  firm  be- 
lief of  some  fact,  not  true  in  itself,  but  which,  if  it  were  true, 
would  excuse  his  act ;  as,  where  the  belief  is  that  the  party  killed 
had  immediate  designs  ivpon  his  life,  and  under  that  belief  the 
insane  man  kills  in  supposed  self-defense." 

In  LevetCs  Case,2  it  was  laid  down  that  it  was  sufficient  defense 
that  the  mortal  blow  was  struck  by  the  defendant  under  the  de- 
lusion that  the  deceased  was  a  robber  wTho  had  entered  the  house; 
but  in  the  Guiteau  trial3  the  charge  practically  intimated  that 
desire  to  avenge  a  supposed  political  wrong,  in  the  absence  of  an 
insane  delusion  that  the  Almighty  had  commanded  him  to  do  the 
act,  was  murder.  By  omitting  the  irrelevant  parts  of  the  last 
paragraph  of  the  charge  to  the  jury  that  construction  is  derived. 
Lawson4  interprets  the  charge,  after  referring  to  the  Levett  Case, 
where  the  delusion  that  the  person  killed  was  a  robber  who  had 
entered  the  house  secured  acquittal,  that  it  would  have  been 
otherwise  had  the  delusion  been  that  the  victim  was  a  political 
opponent  whom  it  was  politic  to  remove ;  notwithstanding  that 
in     United  States  v.  Lawrence*  the  prisoner  was  indicted  for 

1  Com.  v.  Eogers,  7  Met.  500,  41  Am.  Dec.  458. 

2  Cro.  Car.  538. 

s  Gnitean's  Case,  10  Fed.  Rep.  1G1. 
4  2  Criminal  Defense,  324. 
6  4  Crunch,  C.  C.  518  (1835). 


US  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

shooting  at  General  Jackson,  the  President  of  the  United  States, 
with  a  pistol  with  intent  to  kill.  On  the  trial  the  fact  that  the 
prisoner  was  at  the  time  under  a  mental  delusion,  supposing  him- 
self to  be  King  of  England  and  of  the  United  States  as  an 
appendage  to  England,  and  that  President  Jackson  stood  in  the 
way  of  his  enjoyment  of  his  rights,  was  proved.  The  jury  found 
him  not  guilty,  by  reason  of  insanity,  and  he  was  remanded  to 
jail  by  the  court,  as  a  person  too  dangerous  to  be  at  large.1 

It  is  scarcely  necessary  to  mention  idiocy  in  reference  to  re- 
sponsibility, though  it  shades  off  into  imbecility  by  imperceptible 
gradations.  Georget2  characterized  imbeciles  as  knowing  no  other 
incentive  than  the  gratification  of  animal  passion,  and  as  restrained 
from  evil  doing  by  no  higher  sentiment  than  the  fear  of  punish- 
ment. He  said  that  he  had  found  many  examples  of  this  class  in 
prisons,  who  had  been  judicially  decided  to  be  rational,  but  whose 
imbecility  was  manifest  enough  to  him.  Pay3  mentioned  many 
interesting  instances  of  imbecile  murderers,  and  the  medico-legal 
difficulties  in  the  way  of  establishing  any  standard  of  responsibil- 
ity for  this  class  of  unfortunates,  whose  most  common  propensity 
is  to  violate  female  chastity.  He  cites  the  case  of  Barclay,  who 
was  executed  at  Glasgow  for  the  murder  of  a  man  for  possession 
of  a  watch  and  three  one-pound  notes.  Barclay  knew  right  from 
wrong,  but  supposed  the  watch  was  alive,  and  that  God  was  a 
"  muckle  horse."  He  knew  no  difference  between  killings  an  ox 
and  a  man,  except  that  "  the  man  could  not  fiddle  any  longer." 

Young  children  are  acquainted  with  a  knowledge  of  right  and 
wrong  and  they  often  exhibit  just  such  propensities  as  imbeciles. 
Often  the  imbecile  is  spoken  of  as  a  child  in  intellect,  and  the 
mind  of  a  child  in  the  person  of  an  adult  could  be  nothing  but 
imbecility.  Children  are  not  regarded  as  responsible,  though 
often  induced  to  avoid  evil  by  fear  of  immediate  punishment. 
Georget's  characterization  of  imbeciles  could  be  applied  to  many 
children. 

Clouston  says4 :  "At  adolescence  the  reasoning  faculty  first  ac- 
quires backbone,  the  conscience  then  only  assumes  real  dominance; 
before  then  the  difference   between  right  and  wrong  has  only 

1  For  further  citations  on  this  subject,  see  chap.  VII.,  II.,  §  3. 

2  Discussion  Medico  Legale  sur  la  Folie,  140. 

3  Op.  cit.  101  et  seq. 
4Tuke,  op.  cit.  367. 


CRIMINAL    CASES. 


119 


been  known,  then  it  is  felt  and  acted  upon.  .  .  .  The  sense 
of  right  and  wrong,  of  good  and  evil,  is  by  them  kindled  into 
strength  enough  to  guide  conduct."  Then  the  day  the  child  is 
adolescent  he  can  be  considered  responsible,  but  as  such  develop- 
ment varies  within  wide  limits  the  fact  of  having  attained  puberty 
can  only  be  ascertained  for  each  person.  Similarly,  in  the  entire 
range  of  human  beings  no  set  rules  can  be  laid  down  for  any  age, 
diseased  state,  or  station  in  life,  applicable  in  even  a  majority  of 
cases  ;  and  individualization  in  such  things  is  absolutely  necessary 
if  anything  like  a  correct  estimate  of  responsibility  is  to  be  secured. 
And  even  then  it  is  not  determinable  in  every  instance,  for  om- 
niscience alone  could  avoid  mistakes  in  such  endeavors.  If  arbi- 
trary standards  are  to  be  made  it  would  be  well  for  a  merciful 
profession,  such  as  medicine,  to  run  no  risks  of  misjudging. 

To  test  the  English  and  Canadian  legal  criterion  of  responsibil- 
ity, Dr.  B,.  M.  Eucke,  Medical  Superintendent  of  the  London, 
Ontario,  Asylum,1  examined  every  patient  resident  in  his  asylum, 
aggregating  1,034,  of  whom  465  were  males  and  569  females. 
He  found  763  able  to  realize  and  appreciate  the  nature  and  qual- 
ity of  such  an  act  as  homicide,  and  to  understand  that  such  an 
act  was  wrong  and  wicked.  In  more  than  half  of  these  the  appre- 
ciation and  realization  were  as  vivid  as  in  the  ordinary  healthy 
man  and  woman.  Of  the  remaining  271  there  were  121  able  to 
express  an  opinion  on  the  subject,  but  seemingly,  ab  initio,  or  as 
a  result  of  their  diseased  state,  destitute  of  moral  feeling,  and 
these  disclaimed  any  sense  of  repulsion  from  such  an  act,  as  well 
as  any  feeling  or  knowledge  of  its  wrongfulness.  The  other  150 
could  give  no  intelligible  answers. 

Thus,  of  1,034  patients,  763,  or  nearly  three  fourths,  are,  accord- 
ing to  the  law  of  the  land,  responsible  for  such  an  act  as  homicide, 
and  under  that  law  would  be  liable  to  be  executed  for  such  an  act. 
But  the  law  says  that  these  are  not  responsible,  and  locks  them 
up,  many  of  them  for  life,  in  an  asylum.  The  law  cannot  be 
right  in  both  these  contradictory  assumptions.  Not  one  of  these 
763  persons  could  legally,  even  if  discharged  from  an  asylum  or 
if  never  admitted  thereto,  in  their  mental  condition  make  a  will 
or  devote  money  as  he  may  desire,  but  any  one  of  them  could 
be  legally  tried,  convicted,  and  hung  for  so-called  crime. 

1  29th  An.  Eep.  on  Lunatic  Asylums,  Province  of  Ontario,  1896. 


120  MEDICAL    JURISPRUDENCE    OF    INSAKITY. 

Dr.  Bucke  further  instances  two  nearly  similar  cases  of  insan- 
ity, one  of  •whom  was  hung  for  murder,  but  the  other  was  debarred 
from  presenting  his  poor  sister  with  money  he  could  easily  have 
afforded  to  give  her,  as  the  act  was  adjudged  to  be  that  of  a 
lunatic. 

Easily  demonstrated  insanity,  that  approaches  the  popular  esti- 
mate, of  such  disorders  as  wild  mania,  abject  dementia,  etc.,  raises 
no  question  of  responsibility.  It  is  the  recognized  insanity  alone 
that  enables  us  to  draw  the  inference  of  irresponsibility.  Then, 
by  all  means,  in  every  other  case  as  well  the  insanity  should  at 
least  establish  a  reasonable  doubt  of  responsibility,  if  nothing 
more.  The  jury  expedient  of  penitentiary  sentences  in  some 
homicide  cases,  when  insanity  is  an  issue,  shows  that  the  jury 
entertain  the  doubt,  but  juggle  with  their  consciences,  in  a  com- 
promise verdict  between  asvlum  incarceration  ana  hanging. 
Similarly,  some  medical  experts  entertain  peculiar  notions  of 
responsibility  of  the  different  kinds  of  insane :  for  instance,  where 
epilepsy  and  its  insanity  are  under  examination,  or,  in  paranoia 
cases,  so-called  "  partial  insanity." 

Epileptics  in  asylums  have  been  known  to  take  advantage  of 
this  recognition  of  their  irresponsibility  to  do  things  they  acknowl- 
edge they  would  not  otherwise  have  done.  Does  this,  as  it  is 
claimed  by  superficial  thinkers,  justify  holding  them  accountable 
in  such  instances  \  It  appears  to  me  that  such  acts  are  further 
evidence  of  mental  degradation  within  the  limits  of  the  general 
debasement  characteristic  of  many  insane  epileptics.  The  bare 
fact  that  epileptic  lunatics  are  thus  inclined  to  act  proves  that  the 
disease  has  this  peculiar  influence.  At  least  no  physician  has  a 
right  to  affirm  positively  that  any  act  whatsoever  of  an  offensive 
nature  is  not  the  product  of  this  diseased  mental  state.  Similarly 
with  paranoiacs,  whose  entire  life  would  have  been  vastly  differ- 
ent had  they  been  sane.  Nothing  short  of  being  able  to  put  one's 
self  in  the  place  of  that  degenerate,  mentally  and  otherwise,  would 
enable  one  to  form  a  judgment  as  to  what  acts  were  insane  and 
what  sane,  if  any.  It  would  be  more  in  accord  with  the  decency 
and  modesty  of  a  liberal  profession  for  the  physician  to  acknowl- 
edge the  limitations  of  human  knowledge,  and  refuse  to  grapple 
with  problems  he  has  no  means  of  solving. 

Many  conscientious  jurists  claim  that  it  is  for  the  court  to  de- 


CRrMINAL    CASES.  121 

termine,  not  only  the  matter  of  responsibility,  but  the  question  of 
insanity  also,  and,  considering  the  kinds  of  evidence  that  are  of- 
fered in  trials  where  insanity  is  alleged,  it  results  that  the  court 
can  sustain  the  expert  who  advances  the  most  cogent  reasons,  and 
discredit  the  mere  pretender  to  knowledge,  and  thus  the  question 
as  to  what  constitutes  insanity,  based  upon  the  facts  and  expert 
opinions  in  each  case,  can  probably  be  far  better  determined  by 
such  judicial  methods  than  in  any  other  way.  Responsibility 
should  similarly  be  relegated  to  the  court ;  willingly,  by  the  ex- 
pert, under  the  circumstances ;  as,  after  all,  the  court,  lawyers, 
and  jury  take  into  consideration  what  science  has  to  say  upon  the 
subject  under  discussion.  It  is  when  the  judiciary  attempt  to 
measure  such  vital  matters  by  ancient,  variable,  and  unwarranted 
"tests,"  and  the  Procrustean  experiment  results  in  manifest  in- 
justice, that  the  right  of  the  court  to  determine  what  are  insanity* 
and  responsibility  can  properly  be  criticised  as  having  been  mis- 
applied. 

The  paranoiac  form  of  degeneracy  has  given  the  world  the 
most  frequent,  notorious,  and  far-reaching  problems ;  and  no 
writer  has  more  ably  presented  histories  of  such  cases,  from  that 
of  Joan  of  Arc  to  Guiteau  and  Riel,  than  has  W.  W.  Ireland  in 
his  interesting  popular  books1  on  such  topics. 

Great  anger  at  the  time  of  the  homicide  has  been  considered 
by  legislators  as  sufficient  to  reduce  the  punishment,  on  the  ground 
that  it  reduces  the  offense  to  manslaughter;  but  an  irritable  tem- 
per and  excitable  disposition  do  not  constitute  insanity ;  nor  is  the 
frenzy  of  violent  passion,  in  the  absence  of  mental  disease,  an  ex- 
cuse for  crime.  Even  adultery  does  not  justify  homicide,  where 
the  deceased  has  debauched  the  wife  of  the  prisoner. 

Belief  in  spiritualism  is  not  accepted  by  itself  as  supporting 
a  theory  of  insanity  and  consequent  irresponsibility. 

The  insanity  plea  has  sometimes  been  introduced  for  the  pur- 
pose of  bringing  facts  before  the  jury  which  would  excite  sym- 
pathy and  influence  a  verdict.  For  example,  mayhem  and  an 
assault  for  the  seduction  of  a  wife  in  one  case  and  a  daughter 
in  another  were  initially  alleged  as  results  of  temporary  insanity, 
to  enable  the  defense  to  put  in  the  plea  of  irresponsibility  to 
present  the  actual  circumstances  to  the  jury,  which  cared  nothing 

1  The  Blot  upon  the  Brain,  and  Through  the  Ivory  Gates. 


122  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

for  the  failure  to  establish  the  insanity,  but  everything  for  the 
mitigating  facts. 

Especial  difficulties  surround  the  determination  of  responsi- 
bility in  the  lucid  intervals  of  intermittent  cases,  which  have  been 
compared  to  fever  and  ague,  on  the  claim  that  the  disease  remains 
.through  the  intermission. 

That  ideas  of  right  and  wrong  are  not  inherent  or  intuitive, 
or  that  there  is  no  universal  standard  of  right  or  wrong,  and 
hence  of  responsibility,  has  been  suggested  in  connection  with  the 
great  differences  of  opinion  existing  between  sects  and  nations  on 
the  subject  of  polygamy  and  polyandry,  or  even  promiscuity. 
The  Thugs,  a  religious  sect  of  India,  are  said  to  die  of  remorse 
when  prevented  by  imprisonment  from  killing  the  requisite  num- 
ber of  human  beings  they  regard  as  necessary  to  secure  "  Nirvana," 
or  immortal  bliss,  as  they  conceive  it. 

Popular  ideas  of  responsibility  in  times  of  public  excitement 
over  some  atrocity  of  the  insane  often  invade  the  court-room,  and 
an  applauding  or  reviling  mob  has  more  than  once  guided  and 
frightened  jurors  into  compliance  with  the  demands  for  lynching. 
Frequently  the  commonly  made  assertions  that  the  accused  "  is 
sane  enough  to  hang,"  or  that  dangerous  lunatics  should  be  exe- 
cuted on  the  "  mad-dog  jDrinciple,"  are  changed,  after  vengeance  is 
satisfied,  to  the  acknowledgment  that  opposition  to  the  insanity 
plea  was  only  owing  to  the  fact  that  it  admitted  irresponsi- 
bility. In  other  words,  the  public  knew  that  the  prisoner  was 
insane  and  irresponsible,  but  was  determined  to  hang  him  any- 
way. Savages  hold  their  aged  and  sick  to  account  for  trouble 
they  occasion,  and  not  so  very  long  ago  flogging  was  the  thera- 
peusis  for  mania.  It  may  safely  be  asserted  that  the  lower  the 
scale  of  intelligence  the  greater  is  the  desire  for  vengeance,  and 
the  vulpine  tendency  to  pounce  upon  and  tear  to  pieces  the 
wounded  in  life's  struggle.  Punishment  cannot  deter  other 
insane  persons  from  crime,  and  the  most  vulgar  sentiment 
possible  is  revenge.  Mercy  is  the  outgrowth  of  the  highest  in- 
telligence, which  sees  vastlv  better  results  therefrom  than  in  the 
exercise  of  the  prerogative  of  blind  nature  in  visiting  swift  and 
invariable  punishment  for  every  infraction  of  her  law,  whether 
designed  or  accidental.  As  jurisprudence  signalizes  superiority 
over  people  who  are  without  it,  the  higher  jurisprudence  will 


CRIMINAL    CASES.  123 

avenge  less,  and  adopt  protective,  preventive  means  more,  by 
seeking  to  establish  what  is  known  as  to  diseased  and  other  pecu- 
liarities of  the  mind,  and  dwelling  less  upon  mere  artificial  gauges 
of  "  responsibility/' 

Tout  com/prendre  ccst  tout  jpardonner. 


CHAPTER   VII. 

LEGAL  ADJUDICATIONS  IN  CRIMINAL  CASES. 

I.  General  insanity. 

§  1.    What  insanity  affects  criminal  responsibility. 
§  2.  Infant  or  wild-beast  test. 
%  3.  Delusion  test. 
§  4.  Abstract  right  and  wrong  test. 
%  5.   Test  of  right  and  wrong  as  to  particular  act. 
§  6.   Test  of  knowledge  of  the  nature  of  the  act. 
§  7.   Combination  of  the  above  tests. 
§  8.  Cases  denying  the  existence  of  a  test. 
§8a.  The  case  of  State  v.  Jones. 
§  9.  Time  of  application  of  tests. 
§10.  Insanity  as  affecting  the  degree  of  crime. 
II.  Partial  insanity. 
£  1.  Definitions. 

§  2.   Test  of  criminal  responsibility. 
£  3.  Delusions — definition  and  nature. 
§  4.  Delusions — effect  on  criminal  responsibility. 
§  5.  floral  insanity — defined. 
§  6.   The  rule  that  moral  mania  is  not  a  defense. 
§  7.   The  contrary  rule. 
§  8.  Kleptomania. 
§  9.  Erotomania. 

III.  Temporary  and  recurrent  insanity. 

IV.  Existence  of  insanity — how  detehmined. 
V.  Proof  necessary  to  establish  insanitt. 

§  1.   Generally. 

%  2.  Previous  and  subsequent  insanity. 

§  3.  Xature  of  the  crime. 

§  4.  Motive. 

§  5.  Acts  and  conduct. 

§  6.  Personal  characteristics. 

§  7.  Exciting  causes  of  insanity. 

§  8.  Hereditary  insanity. 

§  9.  Judicial  determinations  of  insanity. 

VI.  Insanity  at  and  after  trial. 

§  1.  Effect. 

£  2.   Question  when  and  how  raised. 

§  3.  Determination  as  to  submission  of  issues. 

§  4.   Questions  for  determination. 

§  5.  How  determined. 

§  6.  Effect  and  conclusiveness  of  the  determination. 

%  1.  Insanity  after  verdict. 

%  8.  Effect  of  recovery. 

VII.  Incapacity  of  female  which  will  affect  rape. 

12-i 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  125 

I.  General  insanity. 
§  1 .   What  insanity  affects  criminal  responsibility. 

The  rule  is  laid  down  generally  that  a  person  who,  acting  under 
the  impulse  of  mental  disease,  commits  a  crime,  is  not  criminally 
accountable  therefor,1  and  that  a  person  of  insane  mind  is  not 
subject  to  punishment  for  his  criminal  acts,2  insanity  being 
deemed  an  excuse  whenever  it  was  the  efficient  cause  of  the 
criminal  act,3  though  brought  on  by  the  vices  of  the  party  him- 
self.4 But  the  mere  fact  that  a  person  is  insane  does  not  per  se 
relieve  him  from  criminal  responsibility.6  A  slight  departure 
from  a  well-balanced  mind  cannot  be  recognized  as  insanity  in 
the  administration  of  the  criminal  law,  though  it  might  be  pro- 
nounced insanity  in  medical  science.6 

It  is  not  medical,  but  legal,  insanity  which  is  required  to  relieve 
from  criminal  responsibility,7  though  the  law  of  insanity  can  only 
be  properly  dealt  with  from  a  harmonious  treatment  of  the  two 
sciences  of  law  and  medicine.8  One  may  be  criminally  respon- 
sible where  he  is  so  under  the  guidance  of  reason  as  to  be  legally 
answerable  for  his  acts,  though  he  is  suffering  from  mental  de- 
rangement,9 and  though  he  may  not  be  capable  of  weighing  the 

1  Hite  v.  Sims,  94  Incl.  333  ;  Sage  v.  State,  91  Ind.  141 ;  Cluck  v.  State, 
40  Ind.  263  ;  Goodwin  v.  State,  96  Ind.  550;  Warner  v.  State,  114  Ind. 
137 ;  Lilly  v.  People,  148  111.  467 ;  State  v.  Jones,  50  N.  H.  369,  9  Am. 
Kep.  242  ;  Giebel  v.  State,  28  Tex.  App.  151 ;  Smith  v.  State,  19  Tex. 
App.  95  ;  State  v.  Felter,  25  Iowa,  67  ;  State  v.  Mewherter,  46  Iowa,  88 ; 
Walker  v.  People,  88  N.  Y.  86;  Clark  v.  State,  8  Tex.  App.  350  ;  Smith  v. 
State,  22  Tex.  App.  317. 

2  State  v.  Gardiner,  1  Wright  (Ohio)  392. 

3  Lilly  v.  People,  148  111.  467;  State  v.  Jones,  50  N.  H.  369,  9  Am.  Eep. 
242. 

4  Cluck  v.  State,  40  Ind.  263  ;  State  v.  Erb,  74  Mo.  199.  See  also  chap. 
XIV.     The  Decisions  of  the  Courts  as  to  Alcoholism. 

5  People  v.  O'Connell,  62  How.  Pr.  436  ;  People  v.  Montgomery,  13  Abb. 

Pr.  N.  S.  207 ;  Burgo  v.  State,  20  Neb.  369. 

6  Taylor  v.  Com.  109  Pa.  262. 

1  Leache  v.  State,  22  Tex.  App.  279,  58  Am.  Eep.  638.  And  see  State  v. 
Llockett,  70  Iowa,  442. 

s  Guiteau's  Case,  10  Fed.  Eep.  161. 

9  State  v.  Murray,  11  Or.  413;  Clark's  Case,  1  City  HaU  Eec.  176;  State 
v.  Pagels,  92  Mo.  300;  Hornish  v.  People,  142  IU.  620,  18  L.  E.  A.  237; 
State  v.  Bundy,  24  S.  C.  439,  58  Am.  Eep.  262;  Goodwin  v.  State,  96  Ind. 
550;  State  v.  Maier,  36  W.  Va.  757;  Hadfield's  Case,  27  How.  St.  Tr.  1282. 


126  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

reasons  for  and  against  the  act.1  The  possession  of  sonnci  faculties 
and  full  vigor  of  mind,  unimpaired  by  disease  or  infirmity,  is 
not  required  as  a  condition  of  criminal  responsibility.2  In  order 
to  be  criminally  responsible  one  must  have  intelligence  and 
capacity  to  have  a  criminal  intent  and  purpose,  and  if  his  mental 
powers  are  so  deficient  that  he  has  no  will  or  conscience  or  con- 
trolling mental  power,  or  if  from  the  overwhelming  violence  of 
mental  disease  his  intellectual  power  is  for  the  time  obliterated, 
he  is  not  criminally  responsible,3  the  question  to  be  determined 
being  whether,  at  the  time  of  the  act,  he  had  the  mental  capacity 
to  entertain  a  criminal  intent,  and  whether  in  point  of  fact  he 
did  entertain  it.4  Mental  disorders  cannot  be  regarded  as  evi- 
dence of  insanity  which  will  confer  legal  irresponsibility  for 
crime,  however,  unless  they  are  caused  by  or  result  from 
disease  or  lesion  of  the  brain,5  and  the  criminal  act  must  have 
resulted  from  the  unsoundness  of  mind,6  and  they  must  be  so 
excessive  as  to  overwhelm  the  reason,  conscience,  and  judgment.7 
Thus,  mere  weakness  of  mind  does  not  excuse  crime,8  nor  will 
bad  education  or  bad  habits*  nor  the  fact  that  the  person  is  of  a 
low  order  of  intellect; I0  and  proof  that  a  person  accused  of  crime 

1  State  v.  Swift,  57  Conn.  496. 

2  Leache  v.  State,  22  Tex.  App.  279,  58  Am.  Eep.  638;  State  v.  Smith,  49 
Conn.  376.     And  see  Eeg.  v.  Roberts,  Kay,  Medical  Jurisprudence,  §  10. 

s  Com.  v.  Rogers,  7  Met.  500,  41  Am.  Dec.  458;  King  y.  State,  9  Tex. 
App.  515.     And  see  Anderson  v.  State,  43  Conn.  514,  21  Am.  Eep.  689. 

4  State  v.  Jones,  50  X.  H.  369,  9  Am.  Eep.  242;  Xevliug  v.  Com.  98  Pa. 
323;  State  y.  Swift,  57  Conn.  496;  Thomas  v.  State,  40  Tex.  60;  Burkhard 
v.  State,  18  Tex.  App.  599. 

5  Gunter  v.  State,  83  Ala.  96;  Parsons  v.  State,*81  Ala.  577,  60  Am.  Eep. 
193. 

6  United  States  v.  Favdkner,  35  Fed.  Eep.  730;  State  y.  Geddis,  42  Iowa, 
268;  State  y.  Stickle y,  41  Iowa,  232;  State  y.  Hockett,  70  Iowa,  442;  Con- 
way y.  State,  118  Ind.  482. 

'•  State  y.  Murray,  11  Or.  413;  Spann  v.  State,  47  Ga.  553;  Com.  v.  Wer- 
ling,  164  Pa.  559. 

5  People  y.  Hurley,  8  Cal.  390;  Conway  y.  State,  118  Ind.  482;  Wartena 
v.  State,  105  Ind.  445;  StudstiU  y.  State,  7  Ga.  2;  Fitzpatriek  y.  Com.  81 
Ky.  357;  Xewcomb  v.  State,  37  Miss.  385;  State  v.  Alexander,  30  S.  C.  74, 
14  Am.  St.  Eep.  879;  Anderson  y.  State,  25  Neb.  550;  Xevling  v.  Com.  98 
Pa.  323. 

9  United  States  y.  Cornell,  2  Mason,  91. 

10  PoweU  y.  State,  37  Tex.  348;  Fitzpatriek  y.  Com.  81  Ky.  357. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  127 

is  of  weak  mind  is  inadmissible  where  it  is  admitted  that  lie  is 
neither  insane  nor  an  idiot  nor  a  lunatic.1  Neither  is  crime  ex- 
cused because  committed  under  the  influence  of  fear  and  excite- 
ment2, or  bad  passion3,  or  jealousy.4  And  unreasonable  wrath 
and  anger  do  not  affect  criminal  responsibility  where  the  reason 
is  not  actually  dethroned5:  and  the  rale  is  the  same  though  they 
may  temporarily  dethrone  reason  or  for  the  time  being  control 
the  will,  where  the  inability  to  control  it  arises  from  passion  and 
not  from  insanity.6  Mere  frenzy  or  ungovernable  passion,  how- 
ever furious,  is  not  insanity  within  the  meaning  of  the  law,7 
though  insanity  produced  by  wrath  or  jealousy  would  operate  as 
an  excuse  to  the  same  extent  as  any  other  kind  of  insanity.8  The 
unsoundness  of  mind  which  will  excuse  must  be  the  result  of 
disease,  and  not  of  allowing  the  passions  to  run  until  they  become 
uncontrollable ; "  and  where  the  conduct  of  the  person  is  influ- 
enced by  anger,  rage,  malice,  love  of  gain,  or  a  heart  intently  bent 
on  mischief  as  distinguished  from  insanity  produced  by  the  visi- 
tation of  God,  he  is  responsible  for  his  acts.10  Neither  is  mere 
mental  depravity  insanity  in  a  legal  sense,11  nor  is  eccentricity, 
oddity,    or    hypochondria,12   nor    is    the     depression    following 

1  Studstill  v.  State,  7  Ga.  2;  State  v.  Shoultz,  25  Mo.  128;  Patterson  v. 
People,  46  Barb.  625;  Jacobs  v.  Com.  121  Pa.  586. 

2  People  v.  Hurley,  8  Cal.  390;  Willis  v.  People,  32  N.  Y.  715;  People  v. 
Divine,  1  Edm.  Sel.  Cas.  596. 

;i  United  States  v.  Cornell,  2  Mason,  91;  Fitzpatrick  v.  Com.  81  Ky.  357. 

4  Aszman  v.  State,  123  Ind.  347,  8  L.  B.  A.  33;  Guetig  v.  State,  66  Ind. 
94,  32  Am.  Bep.  99.     And  see  People  v.  Foy,  138  N.  Y.  664. 

5  Lynch  v.  Com.  77  Pa.  205;  Boiling  v.  State,  54  Ark.  588;  People  v,  Foy, 
138  N.  Y.  664;  People  v.  Divine,  1  Edm.  Sel.  Cas.  596. 

6  Williams  v.  State,  50  Ark.  517;  Boiling  v.  State,  54  Ark.  588;  Smith  v. 
State,  55  Ark.  259;  State  v.  Stickley,  41  Iowa,  232;  State  v.  Felter,  25  Iowa, 
67;  Welch  v.  Ware,  32  Mich.  77;  People  v,  Mortimer,  48  Mich.  37;  People 
v.  Finley,  38  Mich.  482. 

1  Aszman  v.  State,  123  Ind.  247,  8  L.  B.  A.  33;  Goodwin  v.  State,  96  Ind. 
550;  Sanders  v.  State,  94  Ind.  147;  Guetig  v.  State,  66  Ind.  94,  32  Am. 
Eep.  99;  People  v.  Finley,  38  Mich.  482;  Willis  v.  People,  32  N.  Y.  715; 
Cole's  Case,  7  Abb.  Pr.  N.  S.  321. 

s  People  v.  Foy,  138  N.  Y.  664. 

9  People  v.  Durfee,  62  Mich.  487;  Welch  v.  Ware,  32  Mich.  77. 

10  Com.  v.  Farkin,  2  Pa.  L.  J.  475;  Nevling  v.  Com.  98  Pa.  323. 

11  Goodwin  v.  State,  96  Ind.  550. 

12  Hawe  v.  State,  11  Neb.  537,  38  Am.  Eep.  375;  State  v.  Shippey,  10 


128  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

physical  illness  such  as  takes  place  ordinarily  with  men  possessing; 
fair  average  mental  powers.1  Insanity  which  will  excuse  crime 
must  be,  uot  the  mere  impulse  of  passion  or  idle,  frantic  humor, 
but  an  absolute  dispossession  of  the  free  and  natural  agencies  of 
the  mind,2  though  it  need  not  be  furious  or  manifested  alike  on 
all  subjects.3  And  criminal  acts  from  malice  and  not  from  in- 
sanity are  punishable,  though  the  mind  of  the  accused  was  so 
affected  as  to  avoid  his  acts  in  a  civil  case  as  those  of  a  lunatic.4 

§  2.  Infant  or  wild-beast  test. 

The  rule  was  laid  down  in  an  early  English  case  that  to  be  ex- 
empt from  criminal  responsibility  one  must  be  at  the  time  so  de- 
prived of  his  understanding  and  memory  as  not  to  know  what  he  was 
doing  more  than  an  infant  or  wild  beast.5  So,  in  a  Connecticut 
case  the  court  favored  the  rule  that  imbeciles  ought  not  to  be  held 
criminally  responsible  unless  of  capacity  equal  to  that  of  ordinary 
children  of  fourteen  years  of  age,  with  the  qualification  that  the 
comparison  should  be  restricted  to  the  matter  of  appreciating 
right  and  wrong  and  the  consequences  of  the  act,  and  that  the  child 
taken  as  a  standard  should  be  one  in  humble  life  with  only  ordi- 
nary training,  and  finally  submitted  the  whole  matter  to  the  jury 
requiring  it  to  say  whether  the  person  had  such  knowledge  of 
right  and  wrong  and  such  appreciation  of  the  consequences  and 
effects  of  his  acts  as  to  -be  a  proper  subject  of  punishment.6  But 
in  a  late  Texas  case  it  was  held  that  the  fact  that  a  person  charged 
with  homicide  was  of  dull  intellect  and  possessed  about  the  intel- 

Minn.  223,  88  Am.  Dec.  70;  Sindrani  v.  People,  1  Park.  Crim.  Eep.  448; 
Com.  v.  Cleary,  148  Pa.  26;  Com.  v.  Parkin,  2  Pa.  L.  J.  475;  Com.  v. 
Meredith,  17  Pliila.  90;  United  States  v.  Young,  25  Fed.  Eep.  710;  Peg. 
v.  Yaughan,  1  Cox,  C.  C.  80. 

1  Goodwin  v.  State,  96  Ind.  550. 

2  People  v.  Camel,  2  Edni.  Sel.  Cas.  200;  Com.  v.  Mosler,  4  Pa.  264; 
Com.  v.  Smith,  15  Phila.  Leg.  Int.  33,  6  Am.  L.  Eeg.  257;  Com.  v.  Shur- 
lock,  14  Pliila.  Leg.  Int.  33. 

3  United  States  v.  Faulkner,  35  Fed.  Eep.  730. 

4  King  v.  Tuth,  1  Wheeler,  Crim.  Cas.  52,  note. 

For  Dr.  Clevenger's  discussion  of  this  subject,  see  Responsibility,  Anger, 
Motive,  Intent,  Impulse,  Malice,  Frenzy,  Eccentricity. 

5  Arnold's  Case,  16  How.  St.  Tr.  764,  Harg.  St.  Tr.  322. 
':  State  v.  Eichard,    39  Conn.  591. 


LEGAL   ADJUDICATIONS    IN    CRIMINAL    OASES.  129 

ligence  of  the  average  boy  of  thirteen  or  fourteen  years  of  age, 
though  he  was  a  matured  man,  does  not  show  imbecility  which 
will  affect  his  criminal  responsibility.1 

§  3.  Delusion  test. 
The  true  test  of  the  presence  or  absence  of  insanity  has  been 
stated  to  be  the  presence  or  absence  of  delusion,2  insanity  being 
always  marked  by  delusions,  delusions  indicating  an  abnormal 
condition  of  the  mind,  and  their  absence  being  a  characteristic  of 
a  sound  mind.8  And  it  has  been  held  that  the  rejection  of  a  spe- 
cial instruction  with  reference  to  an  insane  delusion  is  not  error 
where  the  court  instructed  fully  on  the  subject  of  insanity,  as  de- 
lusion is  insanity,4  and  that  refusal  to  define  an  insane  delusion  is 
not  error  where  the  charge  was  full  upon  the  question  of  insanity, 
and  especially  that  phase  of  it  claimed  to  be  a  delusion.5  But  the 
contrary  doctrine,  that  the  absence  or  presence  of  delusion  is  not 
the  true  test  of  the  absence  or  presence  of  insanity,0  and  that  de- 
lusion cannot  be  said,  to  be  the  only  legal  test  as  a  rule  of  law,7 
would  seem  to  be  more  in  accordance  with  the  tests  given  below. 
A  delusion,  however,  is  evidence  of  insanity.8 

§  4.  Abstract  right  and  wrong  test. 
Some  of  the  cases  have  adopted  the  rule  that  the  test  of  crim- 
inal responsibility  is  the  mental  ability  to  discriminate  between  ab- 
stract right  and  wrong.9     Within  this  rule,  where  there  is  sufficient 

1  Bodgers  v.  State  (Tex.  dim.  App.)  28  S.  W.  685.  See  more  modern 
tests  given  below. 

2  Dew  v./Clark,  3  Addams,  Eccl.  Eep.  79;  Hadfield's  Case,  27  How.  St.  Tr. 
1282;  Macklin's  Case,  3  Couper,  257. 

3  Com.  v.  Meredith,  17  Phila.  90. 
4Boren  v.  State,  32  Tex.  Crim.  Eep.  637. 
6  Wilcox  v.  State,  94  Tenn.  106. 

6  Denson  v.  Beazley,  34  Tex.  191. 

7  Manhattan  L.  Ins.  Co.  v.  Broughton,  109  U.  S.  121,  27  L.  ed.  878. 

8  Com.  v.  Meredith,  14  W.  N.  C.  188. 

For  Dr.  Clevenger's  discussion  of  this  subject,  see  Definitions,  Tests  of 
Insanity,  Delusions,  chap.  II.,  p.  12  et  seq. 

9  State  v.  Bedemeier,  71  Mo.  173,  36  Am.  Eep.  462;  Hawe  v.  State,  11 
Neb.  537;  Walker  v.  People,  88  N.  Y.  86,  1  N.  Y.  Crim.  Eep.  7;  Moett  v. 
People,  85  K  Y.  373;  Wagner  v.  People,  2  Keyes,  684;  Giebel  v.  State,  28 
Tex.  App.  151;  Trial  of  Kinloch,  25  How.  St.  Tr.  891,  997;  Martin's  Case, 
Shelford,  Lunacy,  467. 

9 


130  MEDICAL    JURISPRUDENCE   OF   INSANITY. 

mental  capacity  to  know  right  from  wrong  there  is  criminal  re- 
sponsibility,' but  one  who  has  not  such  capacity  is  not  a  proper 
subject  of  punishment  for  criminal  acts  ;2  and  the  insanity  which 
will  justify  an  acquittal  must  be  such  as  to  incapacitate  the  party 
to  distinguish  between  right  and  wrong.3  And  an  instruction  in 
a  prosecution  for  homicide,  to  convict  if  the  accused  had  sufficient 
mind  to  know  that  he  was  violating  the  law  of  the  land,  whatever 
may  have  been  his  noral  conception  of  the  act,  is  erroneous  as 
authorizing  a  conviction  of  one  not  having  capacity  to  distinguish 
between  right  and  wrong,4  and  so  is  an  instruction  that  if  the 
killing  was  done  with  malice  it  is  murder,  though  the  accused 
may  have  labored  under  partial  insanity,  as  there  can  be  no  such 
thing  as  malice  without  mental  accountability,  and  this  cannot 
coexist  with  incapacity  to  distiuguish  right  from  wrong.5 

§  5.    Test  of  right  and  wrong  as  to  particular  act. 

So  many  of  the  cases  have  regarded  the  test  of  capacity  to  dis- 
tinguish between  right  and  wrong  as  concrete,  having  reference 
to  the  particular  act  in  question,  instead  of  as  abstract,  as  to  jus- 
tify an  inference,  at  least  with  respect  to  the  later  cases,  that  the 
abstract  test  was  inadvertently  stated,  and  that  the  court  actually 
acted  with  reference  to  the  act  in  question.  The  test  stated  in 
such  cases  is  the  question  whether  the  accused  is  capable  of  dis- 
tinguishing  between   right  and  wrong  with  respect  to  the  acl 

1  Conway  v.  State,  118  Ind.  482;  Hornish  v.  People,  142  HI.  620,  18  L 
K.  A.  237;  People  v.  Waltz,  50  How.  Pr.  204;  Clark's  Case,  1  City  Hall 
Bee.  176,  1  Wheeler,  dim.  Cas.  218,  note;  Xevling  v.  Com.  9S  Pa.  323, 
Stuart  v.  State,  1  Baxt.  178. 

2  United  States  v.  Shrdts,  6  McLean,  122;  Anderson  v.  State,  42  Ga.  9, 
Hays  v.  Com.  (Ky.)  33  S.  W.  1104;  Willis  v.  People,  32  N.  Y.  715;  Com. 
v.  Winnemore,  1  Brewst.  356. 

3Beasley  v.  State,  50  Ala.  149,  20  Am.  Eep.  292;  Brinkley  v.  State,  58 
Ga.  296;  Spann  v.  State,  47  Ga.  553;  Cunningham  v.  State,  56  Miss.269, 
21  Am.  Eep.  360;  Burgo  v.  State,  26  Xeb.  639;  Com.  v.  Farkin,  2  Pa.  L.  J. 
475;  Eeg.  v.  Davies,  1  Post.  &  F.  69;  Eeg.  v.  Higginson,  1  Car.  <t  K.  129; 
Parker's  Case,  1  Collinson  Lunacy,  477. 

4  Kearney  v.  State,  68  Miss.  233. 

5  Grissom  v.  State,  62  Miss.  167. 

For  Dr.  Clevenger's  discussion  of  this  subject,  see  Abstract  Eight  and 
Wrong  Tests,  chap.  LL,  p.  18. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  131 

which  he  commits.1  Within  this  rule  one  who  is  not  capable  of 
distinguishing  right  from  wrong  in  regard  to  the  act  charged  is 
not  criminally  accountable  therefor.2  But  he  is  accountable  if  he 
has  such  capacity.3  In  order  to  be  responsible,  however,  he  must 
have  sufficient  power  of  memory  to  recollect  the  relation  in  which 
he  stands  to  others  and  in  which  others  stand  to  him,  and  that  the 
act  he  is  doing  is  contrary  to  the  dictates  of  justice  and  right,  and 
injurious  to  others ;'  and  the  insanity  which  will  excuse  must 
amount  to  a  derangement  so  great  as  to  obliterate  the  sense  of 

1  People  v.  M'Dowell,  47  Cal.  134;  People  v.  Hobson,  17  Cal.  424 ;  State 
v.  Richard,  39  Conn.  591;  State  v.  Danby,  1  Houst.  Crim.  Cas.  166;  State 
v.  Pratt,  1  Honst.  Crim.  Cas.  249;  Loyd  v.  State,  45  Ga.  57;  Choice  v.  State, 
31  Ga.  424;  Carr  v.  State,  96  Ga.  284;  State  v.  Mowry,  37  Kan.  369; 
State  v.  Turlington,  102  Mo.  642;  State  v.  Kotovsky,  74  Mo.  247;  State  v. 
Eedemeier,  71  Mo.  173,  36  Am.  Rep.. 462;  State  v.  Erb,  74  Mo.  199;  State 
v.  Hayes,  16  Mo.  App.  560;  State  v.  Martin  (N.  J.)  3  Crim.  L.  Mag.  44; 
Moett  v.  People,  85  N.  Y.  373;  People  v.  Casey,  2  N.  Y.  Crim.  Rep.  187; 
People  v.  Coleman,  1  N.  Y.  Crim.  Rep.  1;  People  v.  O'Connell,  62  How. 
Pr.  436;  Walker  v.  People,  1  N.  Y.  Crim.  Rep.  7,  22;  Blackburn  v.  State, 
23  Ohio  St.  146;  Clark  v.  State,  12  Ohio,  483,  40  Am.  Dec.  481;  Com.  v. 
Sayres,  12  Phila.  553;  Com.  v.  Freeth,  5  Pa.  L.  J.  455;  State  v.  Mcintosh, 

39  S.  C.  97;  Wilcox  v.  State,  94  Tenn.  106;  Stuart  v.  State,  1  Baxt.  178; 
Evers  v.  State,  31  Tex.  Crim.  Rep.  318,  18  L.  R.  A.  421;  Thomas  v.  State, 

40  Tex.  60;  Carter  v.  State,  12  Tex.  500,  62  Am.  Dec.  539;  Burkhard  v. 
State,  18  Tex.  App.  599;  Erwin  v.  State,  10  Tex.  App.  700;  Williams  v. 
State,  7  Tex.  App.  163;  People  v.  Calton,  5  Utah,  451;  United  States 
v.  McGlue,  1  Curt.  C.  C.  1;  Bellingham's  Case,  1  Collinson,  Lunacy,  636; 
Bowler's  Case,  1  Collinson,  Lunacy,  673. 

2  Parsons  v.  State,  81  Ala.  577,  60  Am.  Rep.  193;  State  v.  Thomas,  1 
Houst.  Crim.  Cas.  511;  Furst  v.  State,  31  Neb.  403;  State  v.  Spencer,  21 
N.  J.  L.  196;  Com.  v.  Sayres,  12  Phila.  553;  Com.  v.  Moore,  2  Pittsb.  502; 
Newcoinb  v.  State,  37  Miss.  385. 

3  State  v.  Reidell,  9  Houst.  470;  Humphreys  v.  State,  45  Ga.  190;  Rob- 
erts v.  State,  3  Ga.  310;  Choice  v.  State,  31  Ga.  424;  Com.  v.  Rogers,  7 
Met.  500,  41  Am.  Dec.  458;  Anderson  v.  State,  25  Neb.  550;  Hart  v.  State, 
14  Neb.  572;  State  v.  Lews,  20  Nev.  333;  Willis  v.  People,  32  N.  Y.  715,  5 
Park.  Crim.  Rep.  621;  State  v.  Haywood,  1  Phill.  L.  376;  State  v.  Murray, 
11  Or.  413;  State  v.  Zorn,  22  Or.  591;  State  v.  Kalb,  2  Ohio  Legal  News, 
364;  Stuart  v.  State,  1  Baxt.  178;  Warren  v.  State,  9  Tex.  App.  619,  35 
Am.  Rep.  745;  State  v.  Maier,  36  W.  Va.  757;  M'Naghten's  Case,  10  Clark 
&  F.  200. 

4  Com.  v.  Rogers,  7  Met.  500,  41  Am.  Dec.  458;  United  States  v.  Faulk- 
ner, 35  Fed.  Rep.  730. 


132  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

right  and  wrong  as  to  the  particular  act  clone  at  that  time,1  or 
render  the  party  unconscious  that  in  doing  the  particular  act  he 
is  committing  a  crime,2  or  render  him  unable  to  apply  such 
knowledge  and  be  controlled  by  it.3 

Most  of  the  cases  do  not  distinguish  between  right  and  wrong 
in  the  moral  sense  and  in  the  legal  sense  ;  but  while  ability  to  dis- 
tinguish between  moral  good  and  evil  has  been  held  to  be  the 
test,4  a  great  majority  of  the  modern  cases  in  which  the  question 
has  been  adverted  to  would  seem  to  hold  that  there  must  be  an 
absence  of  knowledge  that  the  act  is  wrong  either  in  a  moral  or 
in  a  legal  sense,  in  order  to  relieve  from  criminal  responsibility.5 

§  6.   Test  of  knowledge  of  the  nature  of  the  act. 

Some  of  the  cases  have  made  capacity  to  understand  the  nature, 
character,  and  consequences  of  the  act  a  test  of  criminal  responsi- 
bility, holding  that  to  be  effectual  as  a  defense  the  insanity  must 
be  such  as  to  render  the  accused  unconscious  of  such  nature,  char- 
acter, and  consequences,6  and  that  a  person  is  entitled  to  an  acquit- 

1  McAllister  v.  State,  17  Ala.  434,  52  Am.  Dec.  180;  Marceau  v.  Travel- 
ers' Ins.  Co.  101  Cal.  338;  Hornish  v.  People,  142  111.  620, 18  L.  B,  A.  237; 
State  v.  Wright  (Mo.)  35  S.  W.  1145;  State  v.  Pagels,  92  Mo.  300;  State  v. 
Erb,  74  Mo.  199;  People  v.  Montgomery,  13  Abb.  Pr.  N.  S.  207;  State  v. 
Alexander,  30  S.  C.  74,  14  Am.  St.  Eep.  879;  Clark  v.  State,  8  Tex.  App. 
350;  Smith,  v.  State,  22  Tex.  App.  316;  Giebel  v.  State,  28  Tex.  App.  151; 
Eex  v.  Offord,  5  Car.  &  P.  168;  Bellingham's  Case,  1  Collinson,  Lunacy, 
636;  Eeg.  v.  Yaughan,  1  Cox,  C.  C.  80. 

2  McAllister  v.  State,  17  Ala.  434,  52  Am.  Dec.  180. 
3Mcfarland's  Trial,  8  Abb.  Pr.  X.  S.  69. 

4  Trial  of  Kinloch,  25  How.  St.  Tr.  891,  997. 

5  See  McAllister  v.  State,  17  Ala.  434,  52  Am.  Dec.  180;  People  v.  Pico, 
62  Cal.  50;  State  v.  Mowry,  37  Kan.  369;  Choice  v.  State,  31  Ga.  -421; 
Com.  v.  Eogers,  7  Met.  500,  41  Am.  Dec.  458;  State  v.  Lewis,  20  Nev. 
333;  Willis  v.  People,  32  N.  T.  715,  5  Park.  Crim.  Eep.  621;  Moett  v. 
People,  85  N.  Y.  373;  Mcfarland's  Trial,  8  Abb.  Pr.  N.  S.  69;  Blackburn 
v.  State,  23  Ohio  St.  146;  Clark  v.  State,  12  Ohio  St.  483,  40  Am.  Dec.  481; 
Com.  v.  Sayres,  12  Phila.  553;  State  v.  Alexander,  30  S.  C.  74,  14  Am. 
St.  Eep.  879;  State  v.  Mcintosh,  39  S.  C.  97;  Bellingham's  Case,  1  Col- 
linson, Lunacy,  636;  Eeg.  v.  Townley,  3  Fost.  &  F.  839. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Particular  Right  and 
Wrong  Tests,  chap.  H.,  p.  23. 

6  State  v.  Gut,  13  Minn.  343  ;  Humphreys  v.  State,  45  Ga.  190  ;  Fisher 
v.  State,  23  HI.  283;  Bussell  v.  State,  53  Miss.  367  ;  O'Brien  v.  People,  36 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  133 

tal  where  lie  was  mentally  unconscious  of  the  nature  of  his  acts 
at  the  time,1  but  would  be  criminally  responsible  if  he  had  suf- 
ficient mind  to  be  conscious  of  what  he  was  doing.2  Thus,  the  • 
test  of  insanity  as  a  defense  to  a  prosecution  for  an  attempt  to 
commit  suicide  has  been  held  to  be  whether  or  not  the  party  had 
a  mind  capable  of  contemplating  the  act  charged  and  did  in  fact 
intend  to  destroy  his  life.3  And  one  who  sets  fire  to  the  house 
of  another  while  in  such  a  state  of  mind  that  he  is  not  conscious 
that  the  effect  of  it  would  be  to  injure  anyone  is  not  criminally 
responsible.4  So,  where  the  case  depends  upon  the  sanity  of  the 
accused  he  cannot  be  convicted  of  larceny  unless  the  jury  are 
satisfied  that  he  had  sufficient  mind  to  see  all  the  essential  ingre- 
dients of  the  offense  and  acknowledge  their  existence ;  the  mere 
recognition  of  the  fact  that  the  property  stolen  belonged  to  an- 
other would  not  be  sufficient.5  And  one  who  acts  by  persuasion 
of  another,  and  is  without  mind  enough  to  resist  such  persuasion, 
cannot  commit  burglary  and  larceny.6 

§  7.  Combination  of  the  above  tests. 
More  frequently,  however,  it  is  regarded  as  necessary  that  the 
accused  should  not  only  be  incapable  of  knowing  the  nature  and 
character  of  the  act,  but  also  that  he  should  be  without  capacity 
to  distinguish  between  right  and  wrong  with  reference  to  it,  the 
test  in  such  case  being  whether  the  accused  had  sufficient  use  of 
his  reason  to  understand  the  nature  and  character  of  the  act  and 
to  know  that  it  was  wrong  for  him  to  commit  it.7     Under  this 

X.  Y.  276  ;  People  v.  Pine,  2  Barb.  566  ;  State  v.  Brandon,  8  Jones,  L.  463  ; 
Bellingham's  Case,  1  Collinson,  Lunacy,  636. 

1  Cole's  Trial,  7  Abb.  Pr.  N.  S.  321 ;  Bevoir  v.  State,  82  Wis.  295. 

2  Brown  v.  Com.  78  Pa.  122  ;  Com.  v.  Werling,  164  Pa.  559  ;  State  v. 
Swift,  57  Conn.  496  ;  Beg.  v.  Townley,  3  Fost.  &  P.  839 ;  Com.  v.  Jones, 
1  Leigh,  612. 

3  Beg.  v.  Doody,  6  Cox,  C.  C.  463. 

4  Beg.  v.  Davies,  1  Fost.  &  F.  69. 

5  People  v.  Cummins,  47  Mich.  334. 

6  Hays  v.  Com.  (Ky.)  33  S.  W.  1104. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Knowledge  of  the 
Nature  of  the  Act,  Tests  of  Insanity,  chap.  II.,  p.  18. 

1  Guiteau's  Case,  10  Fed.  Bep.  161 ;  People  v.  Pico,  62  Cal.  50  ;  State  v. 
O'Neil,  51  Kan.  651,  24  L.  B.  A.  555  ;  State  v.  Bedemeier,  71  Mo.  173, 
36  Am.  Bep.  462  ;  Freeman  v.  People,    4  Denio,   9,   47  Am.  Dec.   216  ; 


134  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

doctrine  one  who  is  laboring  under  disease  of  the  mental  faculties 
to  such  an  extent  that  he  does  not  know  what  he  is  doing,  or  that 
what  he  does  is  wrong,  is  not  criminally  responsible,1  and  he  can- 
not escape  punishment  unless  that  degree  of  incapacity  is  estab- 
lished.2 JBut  a  person  is  criminally  responsible  for  his  acts  if  he 
had  capacity  and  reason  sufficient  to  enable  him  to  distinguish 
between  right  and  wrong,  and  understand  the  nature  of  his  act 
and  his  relation  to  the  party  injured,3  and  sufficient  mental  power 
to  apply  that  knowledge  to  his  own  case,4  though  it  would  per- 
haps be  going  too  far  to  say  that  he  would  be  responsible  in  every 
case  where  he  had  a  glimmering  of  knowledge  of  what  was  right 
and  wrong.5 

Quite  a  number  of  well-considered  adjudications,  however, 
have  looked  upon  the  question  of  knowledge  of  right  and  wrong, 
and  that  of  capacity  to  know  the  nature  of  the  act,  as  alternative, 
holding  the  test  of  criminal  responsibility  to  be  whether  the  ac- 
cused at  the  time  of  committing  the  act  was  laboring  under  such 
a  defect  of  reason  from  disease  of  the  mind  as  not  to  know  the 
nature  and  quality  of  the  act  he  was  doing,  or,  if  he  did  know, 
that  he  did  not  know  that  he  was  doing  wrong.6 

Walker  v.  People,  1  N.  Y.  Grim.  Eep.  7,  22  ;  State  v.  Potts,  100  N.  C.  457 ; 
State  v.  Payne,  86  N.  C.  609 ;  Blackburn  v.  State,  23  Ohio  St.  146  ;  Peg. 
v.  Layton,  4  Cox,  C.  C.  149  ;  Com.  v.  Piatt,  11  Pkila.  421 ;  Davis  v.  United 
States,  165  U.  S.  373,  41  L.  eel.  750. 

1  Guiteau's  Case,  10  Feci.  Eep.  161  ;  State  v.  Zorn,  22  Or.  591 ;  Com.  v. 
Bezek,  168  Pa.  603  ;  Arnold's  Case,  16  How.  St.  Tr.  695. 

2  State  v.  Eedemeier,  8  Mo.  App.  1  ;  Com.  v.  Farkin,  2  Pa.  L.  J.  475 ; 
Leaclie  v.  State,  22  Tex.  App.  279,  58  Am.  Eep.  638 ;  State  v.  Shippey, 
10  Minn.  223,  88  Am.  Dec.  70  ;  Fitzpatrick  v.  Com.  81  Ky.  357;  McNaghten's 
Case,  10  Clark  &  F.  200 ;  Eeg.  v.  Oxford,  9  Car.  &  P.  525  ;  Eeg.  v.  Town- 
ley,  3  Fost.  &  F.  839  ;  Bellingkam's  Case,  1  Collinson,  Lunacy,  636  ;  Eex 
v.*Offord,  5  Car.  &  P.  169. 

3  State  v.  Gut,  13  Minn.  343  ;  State  v.  West,  1  Houst.  Criin.  Cas.  371 ; 
State  v.  O'Neil,  51  Kan.  651,  24  L.  E.  A.  555  ;  Spencer  v.  State,  69  Md. 
28  ;  Loeffner  v.  State,  10  Ohio  St.  599  ;  State  v.  Haywood,  1  Pliill.  L.  376; 
Nevling  v.  Com.  98  Pa.  323  ;  State  v.  Bundy,  24  S.  C.  439,  58  Am.  Eep. 
262  ;  Stuart  v.  State,  1  Baxt.  178  ;  Eeg.  v.  Townley,  3  Fost.  &  F.  839. 

4  State  v.  Gut,  13  Minn.  343  ;  State  v.  Skippey,  10  Minn.  223,  88  Am. 
Dec.  70 ;  State  v.  West,  1  Houst.  Crim.  Cas.  371. 

6  Eeg.  v.  Layton,  4  Cox,  C.  C.  149. 

6  "United  States  v.  Young,  25  Fed.  Eep.  710  ;  People  v.  Coffman,  24  Cal. 
230  ;  People  v.  Walter,  1  Idaho,  386  ;  State  v.  Lawrence,  57  Me.  574  ;  State 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  135 

§  8.   Cases  denying  the  existence  of  a  test. 

Several  well-considered  cases  which  must  be  deemed  to  estab- 
lish the  doctrine,  at  least  in  Alabama  and  New  Hampshire,  deny 
the  existence  of  any  legal  tests  of  insanity  as  a  defense  in  a  crim- 
inal prosecution,  holding  that  the  courts  cannot  undertake  to  say 
what  are  the  invariable  or  infallible  tests  as  to  insanity  which  will 
relieve  from  criminal  responsibility,1  and  that  whether  a  person 
accused  of  crime  had  a  mental  disease  is  as  much  a  question  of 
fact  as  whether  he  had  a  bodily  disease,  and  whether  the  criminal 
act  was  the  product  of  that  disease  is  also  clearly  a  matter  of  fact,2 
and  that  the  question  whether  there  is  any  universal  test,  as  well 
as  what  that  test  may  be,  is  also  one  of  fact.3  Under  this  doctrine 
no  certain  or  definite  rule  can  be  laid  down  as  to  what  unsound- 
ness of  mind  will  excuse  crime;  the  most  that  can  be  done  is  to 
so  shape  the  law  in  each  particular  case  that  there  is  no  danger  of 
an  insane  man  being  punished  for  an  offense  to  which  his  mind 
never  assented.4  The  only  element  of  law  which  enters  into  the 
question  of  the  existence  of  insanity  as  a  defense  is  that  no  man 
shall  be  held  accountable  criminally  for  an  act  which  is  the  off- 
spring of  mental  disease.5  And  it  is  for  the  jury  to  say  whether 
or  not  the  crime  was  the  product  of  mental  disease,  and  return 
their  verdict  of  guilty  or  not  guilty  by  reason  of  insanity  as  they 
find  the  fact  to  be." 

v.  Klinger,  43  Mo.  127 ;  Anderson  v.  State,  25  Neb.  550 ;  State  v.  Martin 
(N.  J.)  3  Crim.  L.  Mag.  44 ;  Freeman  v.  People,  4  Denio,  y,  47  Am.  Dec. 
216  ;  Flanagan  v.  People,  52  N.  Y.  457,  11  Am.  Rep.  731 ;  People  v.  Kleim, 
1  Edm.  Sel.  Cas.  13;  Com.  v.  McCaulley,  16  Phila.  502;  Webb  v.  State, 
5  Tex.  App.  596 ;  Clark  v.  State,  8  Tex.  App.  35'; ;  Smith  v.  State,  19  Tex. 
App.  444 ;  Kleim's  Case,  Pay,  Medical  Jurisprudence,  §  42.  And  see 
Eevoir  v.  State,  82  Wis.  295. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Tests  of  Insanity, 
Definitions,  chap.  II.,  p.  18. 

1  Parsons  v.  State,  81  Ala.  577,  60  Am.  Rep.  193. 

2  State  v.  Jones,  50  N.  H.  369,  9  Am.  Rep.  242. 

3  State  v.  Jones,  50  N.  H.  369,  9  Am.  Rep.  242. 

4  State  v.  Reddick,  7  Kan.  143. 

6  State  v.  Jones,  50  N.  H.  369,  9  Am.  Rep.  242- 
6  State  v.  Jones,  50  N.  H.  369,  9  Am.  Rep.  242. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Tests  of  Insanity, 
Definitions,  Responsibility,  chap.  II.  p.  24. 


136  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

§  8a.  The  case  of  State  v.  Jones. 

Alienists  heartily  approve  of  the  decision  in  the  case  of  State 
v.  Jones,  50  N.  H.  369,  9  Am.  Eep.  242,  and  claim  that  it  marks 
an  epoch  in  the  history  of  the  better  conformation  of  the  law  to 
advanced  medical  opinion.  In  view  of  this  opinion  as  to  its  im- 
portance, the  report  of  the  case  is  here  given  in  full  so  far  as  it 
bears  upon  the  question  of  insanity  : 

The  defendant  was  found  guilty  of  murder  in  the  first  degree, 
upon  an  indictment  charging  him  with  having  murdered  his  wife. 
Defense,  insanity.  There  was  evidence  tending  to  show  that  de- 
fendant believed  his  wife  guilty  of  adultery  with  one  French,  and 
that  he  killed  her  for  that  reason.  This  belief  was  alleged,  on  the 
part  of  the  defendant,  to  have  been  an  insane  delusion. 

The  defendant  excepted  to  the  several  refusals  of  the  court 
to  give  the  jury  each  of  the  following  instructions : 

"  1.  Under  this  indictment  the  defendant  cannot  be  convicted 
of  murder  in  the  first  degree. 

"  2.  If  the  defendant  was  diseased  in  mind  to  any  extent  what- 
ever, and  the  mental  disease  under  which  he  labored  had  any  in- 
fluence whatever  in  leading  him  to  kill  his  wife,  he  was  not 
responsible. 

"  3.  Any  degree  of  insanity  or  delusion,  and  especially  such 
insanity  or  delusion  as  would  render  the  defendant  incompetent 
to  make  a  will,  makes  him  also  incapable  of  crime  and  not  re- 
sponsible, though  the  jury  may  be  unable  to  trace  any  connection 
between  the  partial  insanity  and  the  act  complained  of. 

"  4.  Delusion  is  the  legal  test  of  insanity. 

"  5.  If  the  defendant  was  under  the  influence  of  any  insane 
delusion  whatever,  or  any  insane  delusion  connected  with  the 
killing  of  his  wife,  he  was  not  responsible. 

"  6.  Knowledge  of  right  and  wrong,  in  respect  to  the  act  in 
question,  is  the  legal  test  of  insanity. 

"  7.  If  the  defendant  killed  his  wife  under  the  control  of  an 
irresistible  impulse,  he  is  not  legally  responsible. 

"  8.  The  defendant  excepted  to  the  following  instructions  given 
to  the  jury : 

"  If  the  defendant  killed  his  wife  in  a  manner  that  would  be 
criminal  and  unlawful  if  the  defendant  were  sane,  the  verdict 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  137 

should  be  '  not  guilty  by  reason  of  insanity,'  if  the  killing  was 
the  offspring  or  product  of  mental  disease  in  the  defendant. 

"  Neither  delusion,  nor  knowledge  of  right  and  wrong,  nor  de- 
sign or  cunning  in  planning  and  executing  the  killing  and  escap- 
ing or  avoiding  detection,  nor  ability  to  recognize  acquaintances, 
or  to  labor,  or  transact  business,  or  manage  affairs,  is,  as  a  matter 
of  law,  a  test  of  mental  disease ;  but  all  symptoms  and  all  tests 
of  mental  disease  are  purely  matters  of  fact,  to  be  determined  by 
the  jury.  Whether  the  defendant  had  a  mental  disease,  and 
whether  the  killing  of  his  wife  was  the  product  of  such  disease, 
are  questions  of  fact  for  the  jury. 

"  Insanity  is  mental  disease — disease  of  the  mind.  An  act  pro- 
duced by  mental  disease  is  not  a  crime.  If  the  defendant  had  a 
mental  disease  which  irresistibly  impelled  him  to  kill  his  wife,  if 
the  killing  was  the  product  of  mental  disease  in  him,  he  is  not 
guilty;  he  is  innocent — as  innocent  as  if  the  act  had  been  pro- 
duced by  involuntary  intoxication,  or  by  another  person  using  his 
hand  against  his  utmost  resistance.  Insanity  is  not  innocence 
unless  it  produced  the  killing  of  his  wife. 

"  If  the  defendant  had  an  insane  impulse  to  kill  his  wife,  and 
could  have  successfully  resisted  it,  he  was  responsible.  Whether 
every  insane  impulse  is  always  irresistible  is  a  question  of  fact. 
Whether,  in  this  case,  the  defendant  had  an  insane  impulse  to 
kill  his  wife,  and  whether  he  could  resist  it,  are  questions  of  fact. 

"  Whether  an  act  may  be  produced  by  partial  insanity  when 
no  connection  can  be  discovered  between  the  act  and  the  disease, 
is  a  question  of  fact. 

"  The  defendant  is  to  be  acquitted  on  the  ground  of  insanity, 
unless  the  jury  are  satisfied,  beyond  a  reasonable  doubt,  that  the 
killing  was  not  produced  by  mental  disease. 

"  The  defendant  was  sentenced,  and  filed  this  bill  of  ex- 
ceptions. 

"  Wm.  C.  Clark,  Attorney  General,  for  the  State. 

"  Hatch  &  Wiggin  for  defendant. 

"Ladd,  J.  (after  deciding  some  minor  questions):  The  re- 
maining and  most  important  questions  in  the  case  arise  upon  the 
instructions  given  by  the  court  to  the  jury,  and  the  refusal  to 
give  instructions  requested  by  defendant's  counsel. 

"  When,  as  in  this  case,  a  person  charged  with  crime  admits 


135  MEDICAL    jrEISPEUDEXCE    OF    INSANITY. 

the  act,  but  sets  up  the  defense  of  insanity,  the  real  ultimate 
question  to  be  determined  seems  to  be,  whether,  at  the  time  of 
the  act.  he  had  the  mental  capacity  to  entertain  a  criminal  intent 
— whether,  in  point  of  fact,  he  did  entertain  such  intent. 

•■  In  solving  that  problem,  as  in  all  other  cases,  it  is  for  the 
court  to  find  the  law.  and  for  the  jury  to  find  the  fact.  The  main 
question  for  our  consideration  here  is.  \Yhat  part  of  this  difficult 
inquiry  is  law,  and  what  part  fact  ? 

"  It  will  be  readily  agreed,  as  said  by  Shaw.  Ch.  J".,  in  Cora.  v. 
•>-.  7  Met  500,  41  Am.  Dec.  45  S,  that  'if  the  reason  and 
mental  powers  of  the  accused  are  either  so  deficient  that  he  has 
n  will,  :  conscience,  or  controlling  mental  power,  or  if.  through 
the  overwhelming  violence  of  mental  disease,  his  intellectual 
power  is  for  the  time  obliterated,  he  is  not  a  responsible  moral 
_      :.  and  is  not  punishable  for  criminal  acts.' 

"  But  experience  and  observation  show  that,  in  most  of  the 
cases  which  come  before  the  courts,  where  it  is  sufficiently 
apparent  that  disease  has  attacked  the  mind  in  some  form  and  to 
some  extent,  it  has  not  thus  wholly  obliterated  the  will,  the  con- 
science, and  mental  power,  but  has  left  its  victim  still  in  possession 
of  -  »me  aegree  of  ability  in  some  or  all  these  qualities.  It  may 
destroy,  or  it  may  only  impair  and  becloud,  the  whole  mind  ;  or 
it  may  destroy,  or  only  impair,  the  functions  of  one  or  more 
faculties  of  the  mind.  There  seem  to  be  cases  where,  as  Erskine 
said  in  Hadndd's  Case.  27  How.  St.  Tr.  1282,  "reason  is  not 
driven  from  her  seat,  but  distraction  sits  down  upon  it  along 
with  her,  holds  her  trembling  upon  it,  and  frightens  her  from 
her  propriety.' 

••The  term  'partial  insanity'  has  been  applied  to  such  cases 
by  writers  and  judges,  from  Lord  Hale  to  Chief  Justice  Shaw. 
where,  as  has  been  said,  'the  mind  may  be  clouded  and  weakened, 
but  not  incapable  of  remembering,  reasoning,  and  judging;' 
and  it  is  here  that  the  difficulty  of  the  subject  begins,  and  that 
confusion  and  contradiction  in  the  authorities  make  their  ap- 
pearance. 

••  •  IV'  one  can  say  where  twilight  ends  or  begins,  but  there  is 
ample  distinction  between  night  and  day.'  "We  are  to  inquire 
whether  a  universal  test  has  been  found  wherewith  to  determine 
in  all  cases  the  line  between  criminal  accountability  and  non- 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  139 

accountability — between  the  region  of  crime  and  innocence — in 
those  cases  which  lie  neither  wholly  in  the  darkness  of  night  nor 
the  light  of  day.  If  such  a  test  exists,  or  if  one  can  be  found,  it 
is  of  the  utmost  importance  that  it  be  clearly  defined  and  broadly 
laid  down,  so  that  when  it  is  given  to  a  jury,  it  may  aid  rather 
than  confuse  them.  To  ascertain  whether  a  rule  has  hitherto  been 
found,  we  must  look  to  the  authorities ;  and  so  far  as  we  have  been 
able  to  examine  them,  the  leading  and  familiar  English  cases  and 
authorities  are  substantially  as  follows  : 

"  Lord  Hale  said  the  mental  capacity  ordinarily  possessed  by 
a  child  fourteen  years  old  was  the  test. 

"  Mr.  Justice  Tracy,  in  Arnold's  Case  (1724:),  said  :  '  It  must 
be  a  man  that  is  totally  deprived  of  his  understanding  and 
memory,  and  doth  not  know  what  he  is  doing,  no  more  than  an 
infant,  than  a  brute,  or  a  wild  beast'  (16  How.  St.  Tr.  764);  and 
the  same  doctrine  substantially  seems  to  have  been  acted  on  in 
the  Trial  of  Ferrers,  19  How.  St.  Tr.  917. 

"  The  next  prominent  case  in  the  books  is  Hadfield's  Case 
(1S00)  27  How.  St.  Tr.  12S2 ;  and  all  I  desire  to  say  of  that  case, 
in  this  connection,  is  that  it  seems  to  stand  by  itself.  It  was 
clear  that  Hadfield  knew  right  from  wrong ;  it  was  clear  that  he 
knew  the  nature  of  the  act  he  was  about  to  commit ;  it  was  clear 
he  manifested  design,  foresight,  and  cunning  in  planning  and 
executing  it ;  and  it  was  clear  he  knew  it  would  subject  him  to 
punishment,  which  was,  indeed,  his  motive  in  committing  it. 
The  most  that  can  be  said  of  it  is,  that  everybody  saw  he  was  in- 
sane, and  that  his  insanity  produced  the  act. 

"  Next  come  three  cases  tried  in  the  year  1812,  Parker's  Case, 
reported  in  1  Collinson,  Lunacy,  477  ;  Boioler's  Case,  1  Collinson, 
Lunacy,  673 ;  and  Bellingham's  Case,  1  Collinson,  Lunacy,  636, 
in  each  of  which  a  more  humane  rule  than  that  of  Mr.  Justice 
Tracy  was  adopted,  namely,  that  knowledge  of  right  and  wrong, 
considered  as  abstract  qualities,  was  the  test ;  although  in  Bowler's 
Case,  Mr.  Justice  Le  Blanc  added  a  further  test,  clearly  suggested 
by,  and  growing  out  of,  the  facts  of  that  particular  case,  and  de- 
signed to  furnish  the  rule  by  which  the  jury  should  be  guided  in 
deciding  it,  rather  than  by  the  formula  in  respect  to  right  and 
wrong,  namely,  that  it  was  for  the  jury  to  determine  whether  the 
prisoner  was  under  any  illusion   in   respect  to  the  prosecutor, 


H'J  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

which  rendered  his  mind,  at  the  moment,  insensible  of  the  nature 
of  the  act  he  was  about  to  commit.  And  in  Bellingham's  Case, 
1  Collinson.  Lunacy,  636.  Sir  James  Mansfield,  Ch.  J.,  took  the 
extraordinary  liberty  of  changing  the  whole  scope  and  meaning 
of  the  rule  by  telling  the  jury,  in  addition,  that  -it  must,  in  fact, 
be  proved  beyond  all  doubt,  that  at  the  time  he  committed  the 
atrocious  act  ...  he  did  not  consider  that  murder  was  a 
crime  against  the  laws  of  God  and  nature.' 

-  It  can  hardly  be  contended  that  these  three  cases  go  far  to- 
ward establishing  a  rule ;  for  there  is  not  much  reason  in  calling 
that  a  rule  which  the  judge  at  the  trial  may  feel  at  liberty  to 
change,  for  the  purpose  of  bringing  about  a  conviction  or  acquit- 
tal, according  to  his  individual  view  of  the  facts  appearing  in  the 
case  before  him. 

"'But  these  remarks  of  Mansfield.  Ch.  J.,  were  approved  by 
Lord  Lyndhurst.  in  Bex  v.  Offord  (1831)  5  Car.  &  P.  168,  al- 
though he.  in  the  same  breath,  or  at  least  in  the  same  charge  to 
the  jury,  laid  down  another  and  a  new  test,  which  seems  to  be 
entirely  inconsistent  with  the  rule  in  Bellingham?s  Case,  1  Col- 
linson, Lunacy,  636,  namely,  that  the  jury  must  be  satisfied,  be- 
fore they  could  acquit  the  prisoner  on  the  ground  of  insanity,  that 
he  did  not  know  when  he  committed  the  act,  what  the  effect  of 
it,  if  fatal,  would  be  with  reference  to  the  crime  of  murder. 
This  is  not  so  clear  as  might  be  desired,  but  I  should  suppose  it 
would  strike  the  average  apprehension  of  a  jury  as  about  equiva- 
lent to  telling  them  that  he  must  know  that  the  killing  would  be 
murder  ;  which  is  a  qualification  of  the  rule  as  much  in  favor  of 
life  as  Sir  James  Mansfield's  was  in  favor  of  death. 

"  In  Beg.  v.  Oxford  (1840)  9  Car.  &  P.  525,  Lord  Denman 
charged  the  jury :  ;  If  some  controlling  disease  was.  in  truth,  the 
acting  power  within  him,  which  he  could  not  resist,  then  he  will 
not  be  responsible.  It  is  not  more  important  than  difficult  to  lay 
down  the  rule  by  which  you  are  to  be  governed.  .  .  .  On 
the  part  of  the  defense  it  is  contended  that  the  prisoner  at  the 
bar  was  non  compos  mentis,  that  is  (as  it  has  been  said),  unable  to 
distinguish  right  from  wrong,  or,  in  other  words,  that  from  the 
effect  of  a  diseased  mind  he  did  not  know  at  the  time  that  the  act 
he  did  was  wrong.  .  .  .  L'pon  the  whole,  the  question  will 
be,  whether  all  that  has  been  proved  about  the  prisoner  at  the 


LEGAL    ADJUDICATIONS    IN    CRIMINAL   CASES.  14:1 

bar  shows  that  he  was  insane  at  the  time  when  the  act  was  done 
— whether  the  evidence  given  proves  a  disease  in  the  mind  as 
of  a  person  quite  incapable  of  distinguishing  right  from  wrong. 
Something  has  been  said  about  the  power  to  contract,  and  to 
make  a  will.  But  I  think  that  those  things  do  not  supply  any 
test.  The  question  is,  whether  the  prisoner  was  laboring  under 
that  species  of  insanity  which  satisfies  you  that  he  was  quite  un- 
aware of  the  nature,  character,  and  consequences  of  the  act  he 
was  committing,  or,  in  other  words,  whether  he  was  under  the  in- 
fluence of  a  diseased  mind,  and  was  really  unconscious,  at  the 
time  he  was  committing  the  act,  that  it  was  a  crime.' 

"But  three  years  afterwards,  in  Reg.  v.  Higginson,  1  Car.  & 
K.  129,  Mr.  Justice  Maule,  apparently  in  utter  disregard  of  the 
elaborate  charge  of  Lord  Denman  in  Reg.  v.  Oxford,  said  to  the 
jury :  '  If  you  are  satisfied  that  the  prisoner  committed  this  of- 
fense, but  you  are  also  satisfied  by  the  evidence  that,  at  the  time 
of  the  committing  the  offense,  the  prisoner  was  so  insane  that  he 
did  not  know  right  from  wrong,  he  should  be  acquitted  on  that 
ground ;  but  if  you  think  that,  at  the  time  of  committing  the 
offense,  he  did  know  right  from  wrong,  he  is  responsible  for  his 
acts,  although  he  is  of  weak  intellect.'  And  again,  in  1 848,  in 
Reg.  y.  Stokes,  3  Car.  &  K.  188,  the  same  test  knowledge  of  right 
and  wrong  in  the  abstract  was  applied  by  Baron  Rolfe,  who  said : 
'  Every  man  is  held  responsible  for  his  acts  by  the  law  of  this 
country,  if  he  can  discern  right  from  wrong.' 

"  The  numerical  preponderance  of  authority  in  England,  as 
gathered  from  the  cases  thus  far,  would  seem  to  be  decidedly  in 
favor  of  the  rule  that  knowledge  of  right  and  wrong,  without 
reference  to  the  particular  act,  is  the  test ;  although  their  force  is 
much  shaken,  if  not  wholly  overthrown,  by  the  qualifications 
which  judges  have  seemed  to  feel  at  liberty  to  introduce,  to  meet 
their  individual  views,  or  the  exigencies  of  particular  cases ;  and 
especially  by  the  charge  of  Lord  Denman  in  Reg.  v.  Oxford. 

"The  memorable  effort  of  the  House  of  Lords,  in  1843,  to 
have  the  confusion  and  conflict  of  opinion  which  had  arisen  on 
this  perplexing  question  all  cleared  away  by  one  distinct  and  full 
avowal  by  the  judges  of  what  the  law  was  and  should  be  in  rela- 
tion to  it  is  too  conspicuous  in  the  history  of  the  subject  to  be 
passed  without  notice. 


142  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

"  It  may  safely  be  said  that  the  character  of  the  judges,  and 
the  circumstances  under  which  the  questions  in  McJVaghten 's 
Case,  10  Clark  &  F.  200/  were  propounded  to  them  by  the  House 
of  Lords,  make  it  morally  certain  that  if,  in  the  nature  of  things, 
clear,  categorical,  and  consistent  answers  were  possible,  such  an- 
swers would  have  been  given.  In  other  words,  that  if  a  safe, 
practical,  legal  test  exists,  it  would  have  been  then  found  by 
those  very  learned  men,  and  declared  to  the  world.  Such  a  result 
would  have  brought  order  out  of  chaos,  and  saved  future  genera- 
tions of  lawyers  and  judges  a  vast  amount  of  trouble  in  trying 
this  kind  of  cases.  But  an  examination  of  the  answers  given 
shows  that  they  failed  utterly  to  do  any  such  thing ;  and  it  is  not 
too  much  to  say  that,  if  they  did  not  make  the  path  to  be  pursued 
absolutely  more  uncertain  and  more  dark,  they  at  best  shed  but 
little  light  upon  its  windings,  and  furnish  no  plain  or  safe  clue  to 
the  labyrinth. 

"  In  answer  to  the  first  question  all  the  judges,  except  JMaule, 
say  that  'notwithstanding  the  party  accused  did  the  act  com- 
plained of  with  a  view,  under  the  influence  of  insane  delusion,  of 
redressing  or  revenging  some  supposed  grievance  or  injury,  or  of 
producing  some  public  benefit,  he  is  nevertheless  punishable,  ac- 
cording to  the  nature  of  the  crime  committed,  if  he  knew  at  the 
time  of  committing  such  crime  that  he  was  acting  contrary  to  law, 
by  which  expression  we  understand  your  lordship  to  mean  the  law 
of  the  land.  Here  is  an  entirely  new  element, — knowledge  that 
he  was  acting  contrary  to  the  law  of  the  land, — and  hereupon  the 
inquiry  arises,  Is  a  man,  acting  under  a  delusion  of  this  sort,  pre- 
sumed to  know  the  law  of  the  land  ?  The  answer  must  be,  Yes  ; 
for  the  judges  say  further  on  :  '  The  law  is  administered  upon  the 
principle  that  everyone  must  be  taken  conclusively  to  know  it, 
without  proof  that  he  does  know  it.' 

"Let  this  proposition  be  examined  a  moment.  Knowledge 
that  the  act  was  contrary  to  the  law  of  the  land  is  here  given  as  a 
test ;  that  is,  such  knowledge  is  assumed  to  be  the  measure  of 
mental  capacity  sufficient  to  entertain  a  criminal  intent.  By  what 
possible  means,  it  may  be  asked,  can  that  test  or  measure  be  ap- 
plied, without  first  finding  out   whether  the  prisoner,  in  fact, 

1  See  note  to  Ecg.  v.  Higginson,  1  Car.  k  K.  130. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  143 

knew  what  the  law  of  the  land  was  ?  How  could  a  jury  say 
whether  a  man  knew,  or  did  not  know,  that  an  act  was  contrary 
to  the  law  of  the  land,  without  first  ascertaining  whether  he  knew 
what  that  law  was  ? 

"  It  was  like  saying  that  knowledge  of  some  fact  in  science — 
as,  for  example,  that  a  certain  quantity  of  arsenic  taken  into  the 
stomach  will  produce  death — shall  be  the  test,  and  at  the  same 
time  saying  that  it  makes  no  difference  whether  the  prisoner 
ever  heard  of  arsenic,  or  knows  anything  of  its  properties  or  not. 
Knowledge  that  the  act  is  contrary  to  law  might  be  taken  as  a 
measure  of  capacity  to  commit  crime,  and  so  might  knowledge  of 
any  other  specific  thing  that  should  be  settled  upon  for  that  pur- 
pose, and  such  a  test  would  be  consistent  and  comprehensible, 
whether  it  were  right  or  not ;  but  when  it  is  said  that  knowledge 
of  a  certain  thing  is  the  test,  and  then  we  are  told  in  the  next 
paragraph  that  it  makes  no  difference  whether  the  man  ever 
heard  of  .the  thing  or  not,  I  confess  that  I  am  not  able  to  see  any 
opening  for  escape,  out  of  the  maze  into  which  we  are  led. 
Whether  a  jury  would  be  more  successful,  must  depend,  I  sup- 
pose, on  their  comparative  intelligence. 

"  In  connection  with  this  rule,  it  is  useful  to  bear  in  mind  that 
Hadfield  knew  he  was  doing  an  illegal  act,  and  did  it  for  the 
avowed  purpose  of  bringing  upon  himself  the  punishment  which 
he  knew  was  the  legal  consequence  of  the  act. 

"Maule,  J.,  holds  that  the  general  test  of  capacity  to  know 
right  from  wrong,  in  the  abstract,  is  to  be  applied  in  the  case 
supposed  by  the  first  question,  the  same  as  in  any  other  phase  of 
mental  unsoundness. 

"  In  answer  to  the  second  and  third  questions,  which  relate  to 
the  terms  in  which  the  matter  should  be  left  to  the  jury,  the 
judges  say  that  '  to  establish  a  defense  on  the  ground  of  insanity, 
it  must  be  clearly  proved  that,  at  the  time  of  the  committing  of 
the  act,  the  party  accused  was  laboring  under  such  a  defect  of 
reason  from  disease  of  the  mind  as  not  to  know  the  nature  and 
quality  of  the  act  he  was  doing,  or,  if  he  did  know  it,  that  he  did 
not  know  he  was  doing;  what  was  wrong;.' 

"  Suppose,  now,  an  insane  man  does  an  act  which  he  knows  to 
be  contrary  to  law,  because  from  an  insane  delusion  (if  that  term 
amounts  to  anything  more  than  the  single  term  '  insanity ' )  he 


144  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

believes  it  to  be  right  notwithstanding  the  law,  that  the  law  is 
wrong,  or  that  the  peculiar  circumstances  of  the  case  make  it 
right  for  him  to  disregard  it  in  this  instance :  how  are  these  two 
rules  to  be  reconciled  %  It  would  seem  to  be  plain  that  they  are 
in  hopeless  conflict,  and  cannot  both  stand. 

"  Maule,  J.,  says  :  '  The  questions  necessarily  to  be  submitted 
to  the  jury  are  those  questions  of  fact  which  are  raised  on  the 
record.  In  a  criminal  trial,  the  question  commonly  is,  whether 
the  accused  be  guilty  or  not  guilty ;  but  in  order  to  assist  the 
jury  in  coming  to  a  right  conclusion  on  this  necessary  and  ulti- 
mate question,  it  is  usual  and  proper  to  submit  such  subordinate 
or  intermediate  questions  as  the  course  which  the  trial  has  taken 
may  have  made  it  convenient  to  direct  their  attention  to.  What 
those  questions  are,  and  the  manner  of  submitting  them,  is  a  mat- 
ter of  discretion  for  the  judge, — a  discretion  to  be  guided  by  a 
consideration  of  all  the  circumstances  attending  the  inquiry.  In 
performing  this  duty,  it  is  sometimes  necessary  or  convenient  to 
inform  the  jury  as  to  the  law,'  which,  he  repeats,  is  knowledge 
of  right  and  wrong.  He  also  says,  there  are  no  terms  which  the 
judge  is  by  law  required  to  use,  only  they  must  not  be  inconsist- 
ent with  the  law  that  knowledge  of  right  and  wrong  is  the  test. 

"  The  answer  to  the  fourth  question  introduces  a  doctrine 
which  seems  to  be  very  remarkable,  to  say  thejeast.  The  ques- 
tion was  :  '  If  a  person,  under  an  insane  delusion  as  to  existing 
facts,  commits  an  offense,  ...  is  he  thereby  excused?'  To 
which  the  answer  was  as  follows :  '  But,  making  the  same 
assumption  as. we  did  before,  namely,  that  he  labors  under  such 
partial  delusion  only,  and  is  not  in  other  respects  insane,  .  .  . 
he  must  be  considered  in  the  same  situation,  as  to  responsibility, 
as  if  the  facts,  with  respect  to  which  the  delusion  exists,  were 
real.  For  example,  if,  under  the  influence  of  his  delusion,  he 
supposes  another  man  to  be  in  the  act  of  attempting  to  take 
away  his  life,  and  he  kills  that  man,  as  he  supposes,  in  self-de- 
fense, he  would  be  exempt  from  punishment.  If  his  delusion 
was  that  the  deceased  had  inflicted  a  serious  injury  to  his  charac- 
ter and  fortune,  and  he  killed  him  in  revenge  for  such  supposed 
injury,  he  would  be  liable  to  punishment.' 

"  The  doctrine  thus  promulgated  as  law  has  found  its  way  into 
the  text-books,  and  has  doubtless  been  largely  received  as  the 


LEGAL   ADJUDICATIONS    IN    CRIMINAL   CASES.  145 

enunciation  of  a  sound  legal  principle  since  that  day.  Yet  it  is 
probable  that  no  ingenuous  student  of  the  law  ever  read  it  for 
the  first  time  without  being  shocked  by  its  exquisite  inhumanity. 
It  practically  holds  a  man  confessed  to  be  insane  accountable  for 
the  exercise  of  the  same  reason,  judgment,  and  controlling  men- 
tal power,  that  are  required  of  a  man  in  perfect  mental  health. 
It  is,  in  effect,  saying  to  the  jury,  the  prisoner  was  mad  when  he 
committed  the  act,  but  he  did  not  use  sufficient  reason  in  his 
madness.  He  killed  a  man  because,  under  an  insane  delusion, 
he  falsely  believed  the  man  had  done  him  a  great  wrong  which 
was  giving  rein  to  a  motive  for  revenge,  and  the  act  is  murder. 
If  he  had  killed  a  man  only  because,  under  an  insane  delusion, 
he  falsely  believed  the  man  would  kill  him  if  he  did  not  do  so 
that  would  have  been  giving  rein  to  an  instinct  of  self-preserva- 
tion, and  would  not  be  crime.  It  is  true,  in  words,  the  judges 
attempted  to  guard  against  a  consequence  so  shocking,  as  that  a 
man  may  be  punished  for  an  act  which  is  purely  the  offspring 
and  product  of  insanity,  by  introducing  the  qualifying  phrase, 
'  and  is  not  in  other  respects  insane.'  That  is,  if  insanity  pro- 
duces the  false  belief,  which  is  the  prime  cause  of  the  act,  but 
goes  no  further,  then  the  accused  is  to  be  judged  according  to 
the  character  of  motives  which  are  presumed  to  spring  up  out  of 
that  part  of  the  mind  which  has  not  been  reached  or  affected  by 
the  delusion  or  disease.  This  is  very  refined.  It  may  be  that 
mental  disease  sometimes  takes  a  shape  to  meet  the  provisions  of 
the  ingenious  formula ;  or,  if  no  such  case  has  ever  yet  existed, 
it  is  doubtless  within  the  scope  of  omnipotent  power  hereafter  to 
strike  with  disease  some  human  mind  in  such  peculiar  manner 
that  the  conditions  will  be  fulfilled  ;  and  when  that  is  done,  when 
it  is  certainly  known  that  such  a  case  has  arisen,  the  rule  may  be 
applied  without  punishing  a  man  for  disease.  That  is,  when  we 
can  certainly  know  that,  although  the  false  belief  on  which  the 
prisoner  acted  was  the  product  of  mental  disease,  still,  that 
the  mind  was  in  no  other  way  impaired  or  affected,  and  that 
the  motive  to  the  act  did  certainly  take  its  rise  in  some  portion 
of  the  mind  that  was  yet  in  perfect  health,  the  rule  may  be  ap- 
plied without  any  apparent  wrong.  But  it  is  a  rule  which  can 
be  safely  applied  in  practice  that  we  are  seeking ;  and  to  say  that 
an  act  which  grows  wholly  out  of  an  insane  belief  that  some  great 
10 


146  MEDICAL    JUKISPEUDENCE    OF    ENSAXITY. 

wrong  has  been  inflicted,  is  at  the  same  time  produced  by  a  spirit 
of  revenge  springing  from  some  portion  or  corner  of  the  mind 
that  has  not  been  reached  by  the  disease,  is  laying  down  a  patho- 
logical and  psychological  fact  which  no  human  intelligence  can 
ever  know  to  be  true,  and  which,  if  it  were  true,  would  not  be 
law,  but  pure  matter  of  fact.  ]S"o  such  distinction  ever  can  or 
will  be  drawn  in  practice ;  and  the  absurdity  as  well  as  inhuman- 
ity of  the  rule  seems  to  me  sufficiently  apparent  without  further 
comment. 

"  To  form  a  correct  estimate  of  the  value  of  these  answers,  we 
have  only  to  suppose  that,  at  the  end  of  a  criminal  trial  where 
the  defense  is  insanity,  they  be  read  to  the  jury  for  their  guid- 
ance in  determining  the  question  with  which  they  are  charged. 
Tried  by  this  practical  test,  it  seems  to  me  they  utterly  fail ;  and 
the  reason  of  the  failure,  as  I  think,  is  that  it  was  an  attempt  to  lay 
down  as  law  that  which,  from  its  very  nature,  is  essentially  mat- 
ter of  fact.  It  is  a  question  of  fact  whether  any  universal  test 
exists,  and  it  is  also  a  question  of  fact  what  the  test  is,  if  any 
there  be. 

"  The  efforts  of  test- writers  to  extract  a  rule  from  the  cases 
have  not,  in  my  judgment,  been  more  successful.  See  1  Russell, 
Crimes  &  Misdemeanors,  13;  Hoscoe^  Crim.  Ev.  944.  It  is 
worthy  of  notice,  however,  that  Mr.  Chitty  lays  down  a  rule 
from  which  is  excluded  all  reference  to  knowledge  of  right  and 
wrong  or  moral  good  and  evil ;  thus  : 

••  -"Where  there  is  only  such  partial  derangement  as  leaves  the 
party  free  to  act  or  to  forbear  in  the  particular  case  in  question, 
or  where  he  is  guilty  of  the  crime  during  a  lucid  interval,  he  will 
be  equally  liable  to  punishment  with  those  who  are  perfectly  sane. 
"Where,  however,  the  mind  labors  under  such  a  delusion  that, 
though  it  discerns  some  objects  clearly,  it  is  totally  deranged  as 
to  the  objects  of  its  attack,  the  party  will  be  entitled  to  an  acquit- 
tal.' 3  Chitty,  Crim.  Law,  725.  To  my  mind  this  is  but  another 
f onn  of  saying  that  where  the  act  is  the  product  of  mental  disease 
it  is  not  crime,  which  was  the  instruction  given  in  this  case. 

"  If  we  leave  the  English  rule  where  it  seems  to  be  left  by  these 
authorities,  I  think  an  examination  of  the  American  cases  will  not 
lead  to  any  more  satisfactory  result. 

"  In  Com.  V.Rogers  (1814)  7  Met.  500, 41  Am. Dec.  458,  Shaw,. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  147 

Ch.  J.,  instructed  the  "jury  that  '  a  person  is  not  responsible  for 
any  criminal  act  he  may  commit,  if,  by  reason  of  mental  infirmity, 
he  is  incapable  of  distinguishing  between  right  and  wrong  in  re- 
gard to  the  particular  act,' and  of  knowing  that  the  act  itself  will 
subject  him  to  punishment ;  or  has  no  will,  no  conscience,  or  con- 
trolling mental  power ;  or  has  not  sufficient  power  of  memory  to 
recollect  the  relations  in  which  he  stands  to  others,  and  in  which 
others  stand  to  him ;  or  has  his  reason,  conscience,  and  judgment 
so  overwhelmed  by  the  violence  of  disease  as  to  act  from  an  un- 
controllable impulse.' 

"Here  seem  to  be  four  distinct  tests.  The  first  is  substantially 
that  given  by  Lord  Denman  in  Reg.  v.  Oxford,  9  Car.  &  P.  525, 
but  with  one  most  important  qualification  added,  namely,  knowl- 
edge that  the  act  will  subject  him  to  punishment.  But  how  can 
it  be  said  that  such  knowledge  constitutes  one  of  the  links  in  a 
chain  of  conclusive  evidence,  that  it  is  one  fact  in  a  chain  of  facts 
from  which  that  degree  of  insanity  which  will  excuse  a  person 
from  crime  is  to  be  conclusively  found  ? 

"  If  that  be  so,  then  certainly  a  legal  quality,  effect,  or  signifi- 
cance is  given  to  it  by  its  position  in  the  chain,  which  no  one 
would  ever  think  it  possessed  when  standing  alone.  The  desire 
for  revenge  may  be  so  strong  as  to  outweigh  the  fear  of  a  punish- 
ment which  a  man  without  any  mental  disease  knows  must  follow 
his  act.  But  the  rule  is  that,  in  addition  to  the  knowledge  of 
right  and  wrong  in  respect  to  the  particular  act,  the  accused  must 
have  been  capable  of  knowing  that  the  act  itself  would  subject 
him  to  punishment. 

"  It  is  doubtless  true  that  ability  to  know  that  a  certain  act  will 
be  followed  by  punishment  furnishes  evidence  of  the  mental  con- 
dition. So  would  knowledge  of  any  other  fact  in  law  or  science. 
But  I  can  see  no  more  reason  for  holding  that  such  knowledge  is 
any  part  of  a  legal  test  of  capacity  to  commit  crime,  than  for 
holding  that  knowledge  of  the  cause  of  an  eclipse  is  entitled  to 
the  same  effect. 

"  The  second  rule  relates  to  a  case  where  there  can  be  no 
doubt, — where  the  will,  the  conscience,  and  the  controlling  men- 
tal power  are  all  gone ;  and  the  fourth  is  substantially  the  same, — 
where  the  reason,  conscience,  and  judgment  are  so  overwhelmed 
bv  the  violence  of  disease,  that  he  acts  from  uncontrollable  im- 


148  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

pulse.  There  can  be  no  very  appreciable  legal  distinction  between 
a  person  who  has  no  will,  no  conscience,  or  controlling  mental 
power,  and  one  whose  reason,  conscience,  and  judgment  are  so 
overwhelmed  by  the  violence  of  disease  as  to  act  from  an  uncon- 
trollable impulse.  In  both  cases  it  is  an  act  in  which  reason,  con- 
■  science,  judgment,  and  will  do  not  participate, — in  a  word,  it  is  the 
product  of  mental  disease. 

"  Power  of  memory  sufficient  to  recollect  the  relations  in  which 
he  stands  to  others  and  which  others  stand  to  him,  which  is  given 
as  the  third  test,  seems  to  me  no  more  a  legal  criterion  than  power 
of  memory  to  recollect  any  other  fact  which  a  healthy  mind  would 
be  expected  to  remember ;  and  such  power  of  memory  or  its  lack 
would  be  a  fact,  like  other  facts,  for  the  jury  to  weigh  in  judg- 
ing whether  he  had  the  mental  capacity  to  entertain  a  criminal 
intent. 

"  There  is  no  doubt  but  these  instructions  of  the  learned  and 
eminent  chief  justice  of  Massachusetts  have  been  largely  followed 
in  cases  since  tried  in  this  country,  but  the  course  has  been  by  no 
means  uniform,  as  we  shall  see. 

"In  New  Tork  and  Pennsylvania,  in  the  two  leading  cases  of 
Freeman  v.  People,  4  Denio,  9,  47  Am.  Dec.  216,  and  Com.  v. 
Hosier,  4  Pa.  267,  capacity  to  distinguish  right  from  wrong  was 
given  as  the  naked  test.  But  in  neither  of  those  states  has  the 
rule  thus  laid  down  been  followed  with  uniformity.  In  the  trial 
of  Huntington  for  forgery,  in  New  York  city,  in  1856,  Judge 
Capron  said  to  the  jury  :  '  To  constitute  a  complete  defense,  in- 
sanity, if  partial,  as  monomania  must  be  such  in  degree  as  to 
wholly  deprive  the  accused  of  the  guide  of  reason  in  regard  to 
the  act  with  which  he  is  charged,  and  of  the  knowledge  that  he 
is  doing  wrong  in  committing  it.'  And  the  remarks  of  Edmunds, 
J.,  in  the  earlier  case  of  People  v.  Kleirn,  1  Edm.  Sel.  Cas.  13, 
are  wholly  at  war  with  any  such  rule  as  that  promulgated  in 
Freeman  v.  People,  4  Denio,  9,  47  Am.  Dec.  216.  He  says : 
'  The  moral  as  well  as  the  intellectual  faculties  may  be  so  disor- 
dered by  the  disease  as  to  deprive  the  mind  of  its  controlling  and 
directing  power ; '  that  he  must  know  the  act  to  be  wrong  and 
punishable,  and  be  able  to  compare  and  choose  between  doing  it 
and  not  doing  it. 

"In  Pennsylvania,  in  Com.  v.  Knepley  (1850),  knowledge  of 


LEGAL    ADJUDICATIONS    IN    CRIMINAL   CASES.  149 

right  and  wrong  in  regard  to  the  particular  act  was  given  as  the 
test ;  and  in  Com.  v.  Haskell,  2  Brewst.  491,  the  judge  charged 
that  '  the  test  in  cases  of  insanity  lies  in  the  word  "  power."  Has 
the  defendant,  in  a  criminal  case,  the  power  to  distinguish  right 
from  wrong,  and  the  power  to  adhere  to  the  right  and  to  avoid 
the  wrong  V 

"  It  would  probably  not  be  far  out  of  the  way  to  say  that  the 
number  of  American  cases  where  knowledge  of  right  and  wrong 
in  the  abstract,  and  knowledge  of  the  nature  and  quality  of  the 
act, — that  it  was  wrong, — have  been  given  as  the  test,  is  about 
equal,  with  a  tendency  of  late  years  to  the  latter  form;  while  it 
will  appear  that,  in  almost  every  case  where  any  rule  has  been 
given  on  the  subject,  it  has  been  modified  and  explained  to  meet 
the  facts  of  the  particular  case,  or  to  carry  out  the  personal 
views  of  the  judge  on  the  matter  of  insanity. 

"  But  there  are  not  wanting  cases  where  all  tests  have  been 
discarded.  In  State  v.  Fetter,  25  Iowa,  67,  Dillon,  Ch.  J.,  says : 
'  The  jury,  in  substance,  should  be  told  that  if  the  defendant's  act 
in  taking  the  life  of  his  wife  was  caused  by  mental  disease  or  un- 
soundness which  dethroned  his  reason  and  judgment  with  respect 
to  that  act,  which  destroyed  his  power  rationally  to  comprehend 
the  nature  and  consequences  of  that  act,  and  which,  overpowering 
his  will,  irresistibly  forced  him  to  its  commission,  then  he  is  not 
amenable  to  legal  punishment.  But  if  the  jury  believe,  from  all 
the  evidence  and  circumstances,  that  the  defendant  was  in  posses- 
sion of  a  rational  intellect  or  sound  mind,  and  allowed  his  pas- 
sions to  escape  control,  then,  though  passion  may  for  the  time 
being  have  driven  reason  from  her  seat  and  usurped  it,  and  have 
urged  the  defendant  with  a  force  at  the  moment  irresistible  to 
desperate  acts,  he  cannot  claim  for  such  acts  the  protection  of 
insanity." 

"And  in  Stevens  v.  State  (1870),  reported  in  9  Am.  L.  Keg.  N. 
S.  530,  which  was  an  indictment  for  murder,  and  the  defense 
insanity,  an  instruction  to  the  jury,  that  if  they  believed  the  de- 
fendant knew  the  difference  between  right  and  wrong  in  respect 
to  the  act  in  question,  if  he  was  conscious  that  such  act  was  one 
which  he  ought  not  to  do,  he  was  responsible,  was  held  erroneous. 
"  In  the  course  of  his  opinion  in  that  case,  Gregory,  J.,  speak- 
ing of  the  charge  in  Com.  v.  Rogers,  7  Met.  500,  41  Am.  Dec. 


150  MEDICAL    JURISPKUDEXCE    OF    INSANITY. 

458,  said  :  '  The  charge  is  by  no  ineans  clear,  and  we  think  that  it 
is  not  entitled  to  the  weight  usually  awarded  to  it.' 

"Very  much  to  the  same  effect  was  State  v.  Spencer,  21  !N".  J. 
L.  196.  Hornblower.  Ch.  J.,  said :  '  In  my  judgment,  the  true 
question  to  be  put  to  the  jury  is,  whether  the  prisoner  was  insane 
at  the  time  of  committing  the  act :  and  in  answer  to  that  ques- 
tion, there  is  little  danger  of  a  jury's  giving  a  negative  answer, 
and  convicting  a  prisoner  who  is  proved  to  be  insane  on  the 
subject-matter  relating  to  or  connected  with  the  criminal  act,  or 
proved  to  be  so  far  or  so  generally  deranged  as  to  render  it  diffi- 
cult, or  almost  impossible,  to  discriminate  between  his  sane  or  his 
insane  acts.' 

'•  And,  also,  a  case  said  to  have  been  tried  in  York  county, 
Maine,  in  1S36,  where  the  court  charged  the  jury  that  if  they 
were  satisfied  the -prisoner  was  not  of  sound  memory  and  discre- 
tion at  the  time  of  committing  the  act,  they  were  bound  to  return 
a  verdict  of  acquittal.  Ray,  Medical  Jurisprudence,  §  42.  To 
the  same  effect  also  are  our  own  cases  of  Prescott  and  Cory,  re- 
ferred to  by  the  attorney  general  in  his  brief. 

"  Professor  Greenleaf  adopts  the  charge  of  Chief  Justice  Shaw, 
in  Roger's  Case,  without  any  attempt  at  modification  or  explana- 
tion, as  covering  the  whole  subject,  so  far  as  criminal  responsi- 
bility is  concerned.     2  Greenl.  Ev.  §  372. 

"Mr.  Bishop  undertakes  to  give  the  forms  in  which  courts 
have  put  the  question  of  insanity  to  the  jury  in  most  of  the  mod- 
ern cases.  1  Bishop,  Crim.  Law,  §  475.  But  I  have  not  been 
able  to  find  a  case,  ancient  or  modern,  where  the  judge  did 
actually  give  the  question  of  insanity  to  the  jury  in  just  the 
terms  of  Mr.  Bishop's  form,  and  he  says,  speaking  of  his  rule : 
'  This  form  of  stating  the  question  of  insanity  to  the  jury  is  well 
in  cases  where  it  is  admitted  that  the  mental  disease  or  imperfec- 
tion extends  only  to  the  intellectual  power,  and  the  party  has  full 
control  of  his  actions.  How  numerous  comparatively  these  cases 
are.  is  matter  of  science  and  fact  nowhere  to  be  discussed.'  1 
Bishop,  Crim.  Law,  £  47S. 

"  In  regard  to  the  difficulties  of  the  subject,  the  same  author 
says  :  '  The  labors  of  writers  on  insanity  have  been  exhausted  in 
attempts  to  find  some  test  of  ready  application  to  determine  when 
a  person  is  to  be  deemed  insane,  and  when  not,  in  reference  to  his 


LEGAL    ADJUDICATIONS   IN    CRIMINAL   CASES.  151 

responsibility  for  crime.  And  judges,  less  informed  on  this  sub- 
ject than  on  most  other  subjects  of  legal  science,  have  struggled 
under  the  inherent  embarrassments  of  the  question  itself,  under 
the  influence  of  erroneous  notions  in  the  community,  and  under 
the  failures  of  counsel  and  witnesses  in  particular  cases  to  present 
the  real  points  of  inquiry.  The  result  has  been,  that  instructions 
given  in  reference  to  particular  facts  appearing  in  the  cases  be- 
fore them  have  seemed,  to  casual  observers,  to  be  very  discord- 
ant, while  to  scientific  inquirers  after  the  facts  of  insanity,  they 
have  seemed  very  absurd.'  1  Bishop,  Crim.  Law,  §  474.  And  in 
a  note :  '  It  seems  to  me  there  has  been  too  much  attempt  to  do 
what  is  possible  regarding  the  matter.  It  is  not,  I  submit,  pos- 
sible, in  the  nature  of  things,  that  the  court  should  find  an  exact 
and  literal  rule  which  may  be  put  into  the  hand  of  a  juryman, 
wherewith  to  measure  the  mind,  and  determine  whether  it  is  crim- 
inally responsible  or  not  for  its  act.' 

"  It  is  to  be  remarked  that  the  same  thing,  in  substance,  was 
admitted  by  the  judges  in  McNaghten's  Case,  10  Clark  &  F.  200. 
Tindal,  Ch.  J.,  giving  the  opinion  of  the  majority,  said :  '  They 
have  forborne  entering  into  any  particular  discussions  upon  these 
questions,  from  the  extreme  and  almost  insuperable  difficulty  of 
applying  those  answers  to  cases  in  which  the  facts  are  not  brought 
judicially  before  them.  The  facts  of  each  particular  case  must  of 
necessity  present  themselves  with  endless  variet}7,  and  with  every 
shade  of  difference  in  each  case ;  .  .  .  and  they  deem  it  at 
once  impracticable,  and  at  the  same  time  dangerous  to  the  admin- 
istration of  justice,  if  it  were  practicable,  to  attempt  to  make 
minute  applications  to  the  principles  involved  in  the  answers 
given  by  them  to  your  lordships'  questions.' 

"  Maule,  J.,  speaking  for  himself,  observed :  '  I  feel  great  dif- 
ficulty in  answering  the  questions  put  by  your  Lordships  on  this 
occasion  :  First,  because  they  do  not  appear  to  rise  out  of,  and  are 
not  put  in  reference  to,  a  particular  case,  or  for  a  particular  pur- 
pose, which  might  explain  or  limit  the  generality  of  their  terms, 
so  that  full  answers  to  them  ought  to  be  applicable  to  every  pos- 
sible state  of  facts  not  inconsistent  with  those  assumed  in  the 
questions.' 

"  It  is  entirely  obvious  that  a  court  of  law  undertaking  to  lay 
down  an  abstract  general  proposition,  which  may  be  given  to  the 


152  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

jury  in  all  cases,  by  which  they  are  to  determine  whether  the 
prisoner  had  capacity  to  entertain  a  criminal  intent,  stands  in 
exactly  the  same  position  as  that  occupied  by  the  English  judges 
in  attempting  to  answer  the  questions  propounded  to  them  by  the 
House  of  Lords  in  this  case ;  and  whenever  such  an  attempt  is 
made,  I  think  it  must  always  be  attended  with  failure,  because  it 
is  an  attempt  to  find  what  does  not  exist,  namely,  a  rule  of  law 
wherewith  to  solve  a  question  of  fact. 

"  This  is  the  only  conclusion  I  desire  to  draw  from  the  cases 
and  text-writers  referred  to.  It  is.  clear  to  me  that  judges  have 
adapted  their  language  to  the  facts  of  the  particular  case  before 
them,  and  that  when  anything  is  said  about  knowledge  of  right 
and  wrong,  or  knowledge  of  the  quality  of  the  act,  or  any  other 
legal  test,  it  has  been,  and  will  inevitably  continue  to  be,  qualified 
and  explained  in  such  a  way,  to  meet  the  evidence  upon  which 
the  jury  are  to  pass,  that  its  character  as  a  rule  entirely  dis- 
appears. 

"  JSTo  one  but  the  Creator  of  all  things  can  look  in  upon  the 
chaos  of  a  disordered  mind,  and  determine  with  certainty  whether 
its  powers  are  so  much  prostrated,  enfeebled,  or  deranged  that 
fche  unhappy  sufferer  has  ceased  to  be  an  accountable  being.  Still 
the  court  and  jury  must  determine  that  question,  approximately, 
as  best  they  can  in  each  individual  case  ;  and  it  makes  no  differ- 
ence, so  far  as  I  can  see,  with  the  difficulty  of  the  subject,  whether 
Lord  Brougham's  view,  that  a  distinction  is  to  be  made  between 
fche  moral  accountability  of  a  man  to  his  Maker  and  his  account- 
ability to  human  tribunals,  be  accepted  or  not.  With  this  duty 
to  perform,  and  this  responsibility  upon  them,  courts  naturally 
and  properly  turn  to  men  of  science,  such  as  have  had  large  ex- 
perience in  the  care  and  treatment  of  the  insane,  for  aid ;  and  the 
questions  allowed  to  be  put  to  experts  and  answered  by  them, 
both  in  England  and  this  country,  show  that  what  is  laid  down 
as  law  in  theory,  is  almost  universally  treated  as  fact  in  practice. 

"At  the  trial  where  insanity  is  set  up  as  a  defense,  two  ques- 
tions are  presented :  First,  Had  the  prisoner  a  mental  disease  ? 
Second,  If  he  had,  was  the  disease  of  such  a  character,  or  was  it  so 
far  developed,  or  had  it  so  far  subjugated  the  powers  of  the  mind 
as  to  take  away  the  capacity  to  form  or  entertain  a  criminal  intent? 
The  first  is  so  purely  a  question  of  fact,  that  no  one  would  think 


LEGAL    ADJUDICATIONS    IN    CRIMINAL   CASES.  153 

of  disputing  it  any  sooner  than  he  would  dispute  that  it  was  a 
question  of  fact  whether  a  man  has  consumption  or  not.  It  is 
in  settling  the  second  that  all  the  difficulty  arises. 

"  The  instructions  asked  for  in  this  case  go  upon  the  ground 
that  this  is  a  mixed  question  of  law  and  fact ;  that  where  there  is 
delusion  there  can  be  no  criminal  intent ;  and  that  where  there 
is  capacity  to  know  right  from  wrong  in  reference  to  the  par- 
ticular act,  there  is  capacity  to  commit  crime.  It  is  true,  the 
sixth  request  does  not  present  the  matter  in  just  this  form ;  but 
if  knowledge  0f  right  and  wrong  as  to  the  act  is  to  be  considered 
a  legal  test  of  criminal  accountability,  it  must  follow  that  those 
who  have  such  knowledge  are  accountable,  as  well  as  those  who 
have  it  not  are  not  accountable.  And  this  court  is  now  called  on, 
as  a  court  of  law,  to  decide  whether  either  of  these  tests  shall  be 
adopted  in  this  state,  and  if  so,  which. 

"It  would  doubtless  be  convenient  to  adopt  some  such  test. 
It  would,  to  some  extent,  save  the  trouble  of  trying  each  case,  as 
it  arises,  on  its  own  special  and  peculiar  facts ;  at  any  rate,  it 
would  narrow  the  range  of  investigation  to  a  search  for  the  facts 
constituting  the  test  adopted.  But  in  cases  of  this  sort  the  argu- 
ment of  convenience  is  not  to  be  admitted.  JSTo  formal  rule  can 
be  applied  in  settling  questions  which  have  relation  to  liberty  and 
life,  merely  because  it  will  lessen  the  labor  of  the  court  or  jury. 
Nor  ought  such  a  rule  to  be  adopted  upon  the  authority  of  cases, 
unless  those  cases  show,  beyond  a  doubt,  not  only  its  existence, 
but  that  it  is  founded  in  reason  and  fundamental  truth.  Ex- 
pressions of  even  the  most  eminent  judges  must  not  be  mistaken 
for  the  enunciation  of  a  universal  principle  of  law,  when  it 
appears  that  they  were  used  in  charging  the  jury  upon  the  facts 
arising  in  a  particular  case. 

"  The  instructions  given  also  imply  that  this  is  a  mixed  ques- 
tion of  law  and  fact ;  that  the  only  element  of  law  which  enters 
into  it  is  that  no  man  shall  be  held  accountable,  criminally,  for 
an  act  which  was  the  offspring  and  product  of  mental  disease. 
Of  the  soundness  of  this  proposition  there  can  be  no  doubt.  Thus 
far  all  are  agreed,  and  the  doctrine  rests  upon  principles  of 
reason,  humanity,  and  justice,  too  firm  and  too  deeply  rooted  to 
be  shaken  by  any  narrow  rule  that  might  be  adopted  on  the  sub- 
ject.    No  argument  is  needed  to  show  that  to  hold  that  a  man 


154  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

may  be  punished  for  what  is  the  offspring  of  disease  would  be  to 
hold  that  he  may  be  punished  for  disease.  Any  rule  which 
makes  that  possible  cannot  be  law. 

"  It  will  hardly  be  contended,  I  suppose,  that  delusion,  or 
knowledge  of  right  and  wrong,  with  reference  to  the  act,  or  any 
other  thing,  can,  with  any  degree  of  propriety,  be  called  a  legal 
test  of  the  mental  capacity  to  commit  crime,  unless  that  capacity 
is  determined  absolutely,  in  all  cases,  by  the  presence  or  absence 
of  the  fact  which  is  assumed  to  constitute  the  test. 

"If  we  speak  of  delusion,  for  instance,  before  that  can  be 
adopted  as  the  test,  in  the  sense  intended  by  the  request  in  this 
case,  it  must  appear  that  it  makes  no  difference  whether  the 
delusion  has  any  reference  to  or  connection  with  the  act  or 
not.  If  we  say,  as  Erskine  said  in  Had  field?  s  Case,  27  How.  St. 
Tr.  12S2,  that  delusion  is  the  test  when  it  appears  to  have  pro- 
duced the  act,  but  not  when  it  does  not  appear  to  have  produced 
the  act,— that  the  delusion  and  the  act  should  be  connected, — we 
admit  that  delusion  cannot  be  a  legal  test,  because  it  is  not  a  uni- 
versal test. 

"And  even  if  it  were  established  that,  in  all  cases  where  there 
is  delusion,  there  is  not  capacity  to  commit  crime  with  as  much 
certainty  as  that  a  heavy  body  left  free  in  the  air  will  fall  to  the 
earth,  it  still  remains  a  fact.  That  a  heavy  body  will  fall  is  a 
fact,  although  it  is  at  the  same  time  a  law  of  nature ;  that  delu- 
sion attends  incapacity  for  crime  would  be  a  fact  still,  although 
were  the  fact  ascertained  to  be  certain  and  universal,  it  might  be 
called  a  law  of  mental  disease,  and  might,  therefore,  be  given  to 
the  jury  as  a  criterion,  without  any  positive  or  practical  wrong. 

"  Yet,  in  that  view  it  would  be  the  law  of  the  land  in  no  other 
sense  than  the  laws  of  nature  and  physics  may  be  considered  laws 
of  the  land.  Now  this  court,  sitting  for  the  decision  of  questions 
of  law,  is  not  at  liberty  to  receive  and  consider  evidence,  or  weigh 
and  determine  matters  of  fact. 

"  But  the  very  first  step  in  the  inquiry  to  ascertain  if  there  be 
any  test  or  criterion  that  may  be  safely  given  to  the  jury  on  the 
subject,  whether  as  a  fact  universally  true,  or  as  a  principle  of 
law,  involves  the  examination  of  an  immense  mass  of  evidence,  as 
complicated  and  difficult  to  understand  as  can  well  be  conceived. 
Moreover  it  would  require  a  degree  of  skill  and  scientific  attain- 


LEGAL   ADJUDICATIONS    IN    CRIMINAL   CASES.  155 

ment  which  could  only  be  reached  by  years  of  special  study  and 
intelligent  observation.  Not  only  ought  all  the  facts  bearing  on 
the  question  to  be  collected  from  every  asylum  for  the  insane 
throughout  the  world,  but,  as  an  inflexible  rule  is  to  be  established, 
the  facts  of  all  other  cases,  where  the  patient  has  never  received 
scientific  treatment,  ought  to  be  added  to  the  stock.  Then,  after 
collecting  the  facts  in  this  way,  it  would  be  necessary  to  compare 
cases  and  classes  of  cases  one  with  the  other,  to  weigh  facts 
against  facts,  to  balance  theories  and  opinions,  and  finally  to 
deduce  a  result  which  might  itself  turn  out  to  be  nothing  more 
than  a  theory  or  opinion  after  all.  At  any  rate  it  would  be  a 
deduction  of  fact. 

.  "  It  need  not  be  said  that  this  is  not  the  business  of  a  court  of 
law.  It  is  a  work  which  can  only  be  reasonably  well  done  by 
men  who  devote  their  lives  exclusively  to  its  accomplishment. 
Such  a  work  has  doubtless  been  done,  with  extraordinary  patience 
and  ability,  by  our  distinguished  countryman,  Dr.  Ray;  and  the 
result  of  his  laborious  investigation  is,  that  no  test  can  be  found. 
He  says :  '  By  persons  practically  acquainted  with  the  opera- 
tions of  the  insane  mind,  to  such  it  is  well  known  that  in  every 
hospital  for  the  insane  are  patients  capable  of  distinguishing  be- 
tween right  and  wrong,  knowing  well  enough  how  to  appreciate 
the  nature  and  legal  consequences  of  their  acts,  acknowledging 
the  sanctities  of  religion,  and  never  acting  from  irresistible  im- 
pulse, but  deliberately  and  shrewdly.'  Kay,  Medical  Jurispru- 
dence, §  43. 

"  If  we  were  at  liberty  to  weigh  and  consider  evidence  upon 
the  question,  it  is  clear  that  such  testimony  must  outweigh  all 
the  convenient  formulas  and  arbitrary  dogmas  laid  down  by  law- 
yers and  judges  from  the  time  of  Lord  Hale  to  the  present,  simply 
for  the  reason  that  Dr.  Ray  is  qualified  by  study  and  observation 
to  give  an  opinion,  while  lawyers  and  judges  are  not.  But  we 
do  not  consider  evidence  upon  this  point  at  all ;  whether  there  is 
any  universal  test  is  as  clearly  a  pure  matter  of  fact,  as  is  the 
question  what  that  test  may  be. 

"  A  strong  argument  in  favor  of  the  instructions  given  in  this 
case,  and  of  consequence  against  proceeding  further  to  give  the 
specific  instructions  requested,  is  found  both  upon  principle  and 
authority,  in  the  course  of  decisions  where  testamentary  capacity 
has  been  before  the  courts. 


156  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

"  In  the  well-known  leading  case  of  Dew  v.  Clark,  3  Add. 
Eccl.  Eep.  79,  decided  in  1826,  Sir  John  Nicholl  gave  his  opin- 
ion thus :  '  The  true  criterion — the  true  test — of  the  absence  or 
presence  of  insanity,  I  take  to  be,  the  absence  or  presence  of 
what,  used  in  a  certain  sense  of  it,  is  comprisable  in  a  single 
terra,  namely,  "  delusion."  Wherever  the  patient  once  con- 
ceives something  extravagant  to  exist,  which  has  still  no  existence 
whatever  but  in  his  own  heated  imagination;  and  wherever  at 
the  same  time,  having  once  so  conceived,  he  is  incapable  of  being, 
or,  at  least,  of  being  permanently,  reasoned  out  of  that  concep- 
tion,—  such  patient  is  said  to  be  under  a  delusion,  in  a  peculiar 
half-technical  sense  of  the  term ;  and  the  absence  or  presence  of 
the  delusion,  so  understood,  forms,  in  my  judgment,  the  true 
and  only  test  or  criterion  of  absent  or  present  insanity.  In  short, 
I  look  upon  delusion,  in  this  sense  of  it,  and  insanity,  to  be- 
almost,  if  not  altogether,  convertible  terms ;  so  that  a  patient 
under  a  delusion,  so  understood,  on  any  subject  or  subjects,  in 
any  degree,  is,  for  that  reason,  essentially  mad  or  insane  on  such, 
subject  or  subjects  in  that  degree.' 

"  After  a  very  extended  review  of  the  evidence  in  the  case,  he 
draws  this  conclusion :  '  The  will  propounded  in  this  cause,  a 
will  virtually  disinheriting  the  daughter,  being  the  direct,  unquali- 
fied offspring  of  that  morbid  delusion,  proved,  I  may  now  say 
without  any  qualification  or  restriction,  to  have  been  ever  present 
to  the  mind  of  the  deceased  as  to  the  character  and  conduct  of 
his  daughter, — being,  if  I  may  so  term  it,  the  very  creature  of 
that  morbid  delusion,  put  into  act  and  energy, — I,  at  least,  can 
arrive  at  no  other  conclusion,  than  that  the  deceased  was  insane 
at  the  time  of  his  making  the  will  propounded  in  this  cause ;  and, 
consequently,  that  that  will  itself  is  null  and  void  in  law.' 

"  In  view  of  this  explicit  avowal,  it  may  be  considered  some- 
what remarkable  that  this  case  should  have  been  regarded  as  an 
authority  for  anything  more  than  this — that  delusion  is  the  test 
of  testamentary  capacity,  so  far  that  a  disposition  of  property  by 
a  will,  which  is  shown  to  have  been  the  direct,  unqualified  off- 
spring of  morbid  delusion,  cannot  be  upheld.  If  a  morbid  delu- 
sion produced  the  act,  then  the  act  is  not  valid.  But,  whether 
through  a  misconception  of  this  case,  or  by  adopting  the  theory 
of  some  writers  who  maintain  that  the  mind,  though  it  has  varied 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  157 

faculties,  is  one  and  indivisible,  so  that  if  it  be  disordered  in  any- 
one of  these  faculties  it  cannot  be  said  to  be  sound,  though  its 
other  faculties  and  functions  remain  undisturbed,  a  doctrine  ap- 
pears to  have  gained  some  currency  in  England  to  the  effect  that 
delusion  on  any  matter,  however  remote  from  the  subject  of  the 
will,  and  however  disconnected  from  it,  is  conclusive  evidence  of 
unsoundness  of  mind,  and  therefore  altogether  destroys  testa- 
mentary capacity.  Waring  v.  Waring,  6  Moore,  P.  C.  341.  And 
see  also  Smith  v.  TebUtt,  L.  R.  1  Prob.  &  Div.  398. 

"  This  idea  was  attacked  and  completely  overthrown  in  the  case 
of  Banks  v.  Goodfellow,  L.  R.  5  Q.  B.  549,  decided  in  July, 
1870. 

"  In  that  case  it  appeared  that  a  testator  labored  under  two 
fixed  delusions :  one  that  he  was  pursued  by  spirits ;  the  other, 
that  a  man,  long  since  dead,  came  to  molest  him — neither  delu- 
sion influencing  or  calculated  to  influence  the  particular  testa- 
mentary disposition  made  by  him.  Brett,  J.,  who  tried  the  case, 
left  it  with  the  jury  to  say  whether,  at  the  time  of  the  making  of 
the  will,  the  testator  was  capable  of  such  knowledge  and  appre- 
ciation of  facts,  and  was  so  far  master  of  his  intentions  and  free 
from  delusions,  as  would  enable  him  to  have  a  will  of  his  own  in 
the  disposition  of  his  property,  and  act  upon  it. 

"  It  will  be  observed  that  if  a  delusion  were  to  be  regarded 
as  a  universal  legal  test,  there  was  no  question  here  to  be  sub- 
mitted to  the  jury ;  a  verdict  should  have  been  ordered  against 
the  will,  for  the  existence  of  delusions  was  not  disputed.  But 
the  instructions  were  held  correct,  and  Lord  Chief  Justice  Cock- 
burn,  in  the  course  of  his  elaborate  opinion,  says :  '  Everyone 
must  be  conscious  that  the  faculties  and  functions  of  the  mind  are 
various  and  distinct,  as  are  the  powers  and  functions  of  our  phy- 
sical organization.  The  senses,  the  instincts,  the  affections,  the 
passions,  the  moral  qualities,  the  will,  perception,  thought,  reason, 
imagination,  memory,  are  so  many  distinct  faculties  or  functions 
•of  the  mind.  The  pathology  of  mental  disease,  and  the  expe- 
rience of  insanity  in  its  various  forms,  teach  us  that  while,  on  the 
one  hand,  all  the  faculties,  moral  and  intellectual,  may  be  involved 
in  one  common  ruin,  as  in  the  case  of  a  raving  maniac,  in  other 
instances  one  or  more  only  of  these  faculties  or  functions  may  be 
disordered  while  the  rest  are  left  unimpaired  and  undisturbed, — 


158 


MEDICAL    JURISPRUDENCE    OF    INSANITY. 


that  while  the  mind  may  be  overpowered  by  delusions  which  ut- 
terly demoralize  it  and  unfit  it  for  the  perception  of  the  true  na- 
ture of  surrounding  things,  or  for  the'  discharge  of  the  common 
obligations  of  life,  there  often  are,  on  the  other  hand,  delusions 
which,  though  the  offspring  of  mental  disease,  .  .  .  leave  the 
.  individual  in  all  other  respects  rational,  and  capable  of  transacting 
the  ordinary  affairs,  and  fulfilling  the  duties  and  obligations  inci- 
dental to  the  various  relations  of  life.' 

"  The  exact  question  presented  to  the  court  in  this  case,  namely, 
whether  unsoundness,  not  operating  on  the  mind  of  the  testator 
in  regard  to  the  particular  testamentary  disposition,  will  be  suffi- 
cient to  deprive  him  of  the  power  of  disposing  of  his  property  by 
will,  was  said  to  be  a  new  question,  not  before  presented  for  judi- 
cial decision  in  England. 

"But  in  Boardman  v.  Woodman,  47  1ST.  H.  120,  decided  four 
years  earlier  in  this  state,  the  court  below,  Bartlett,  J.,  charged 
the  jury  'that  the  mere  fact  of  the  possession  of  a  delusion  may 
not  be  sufficient  to  render  a  person  utterly  incapable  of  making  a 
valid  will ;  that  a  person  of  sufficient  mental  capacity,  though 
under  a  delusion,  may  make  a  valid  will ;  if  the  will  is  in  no  way 
the  offspring  of  the  delusion,  it  is  unaffected  by  it.' 

"  This  instruction  was  sustained,  and  I  am  unable  to  find  any- 
thing in  the  opinion  of  the  court  that  conflicts  with  the  doctrine 
of  Banks  v.  Goodfellow,  L.  R.  5  Q.  B.  519.  Sargent,  J.,  in  the 
course  of  his  opinion  says :  '  Delusion  in  the  technical  sense,  as 
explained  by  Sir  John  JNicholl  and  others,  is,  then,  the  legal  test 
of  the  presence  of  active  insanity,  and  if  the  will  is  the  offspring 
of  this  delusion,  it  should  be  set  aside.' 

"  It  is  sufficiently  obvious  that  neither  Sir  John  Mcholl  nor 
Judge  Sargent  would  hold  that  a  man  who  labors  under  a  delu- 
sion that  his  legs  are  made  of  glass,  or  that  he  is  charged  with 
controlling  the  motions  of  the  planetary  system,  but  is  in  other 
respects  sane,  would  therefore  be  incapable  of  making  a  valid  will. 
"  It  is  not  necessary  here  to  express  any  assent  to  or  dissent 
from  the  manner  in  which  the  subject  is  treated  in  Dew  v.  Clark* 
3  Add.  Eccl.  Rep.  79,  and  Boardman  v.  Woodman,  4,7  !N".  H. 
120.  "Whether  the  inquiry  is  advanced  by  saying  that  the  act  to 
be  invalid  must  be  the  offspring  of  delusion,  instead  of  saying 
that  it  must  be  the  offspring  of  mental  disease,  is  a  matter  which 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  159 

does  not  concern  this  argument.  See  remarks  of  Lord  Penzance 
in  Smith  v.  Tebhitt,  L.  K.  1  Prob.  Div.  398.  If  the  doctrine  of 
Banks  v.  Goodfellow,  L.  R.  5  Q.  B.  549,  and  Boardman  v. 
Wood?>ian,  supra,  be  applied  in  the  case  under  consideration,  it 
would  clearly  have  been  error  to  give  the  instruction  as  to  delu- 
sion requested  by  defendant's  counsel ;  because  delusion  cannot  be 
a  legal  test,  if  while  delusions  exist  in  the  mind  an  act  no  way 
connected  with  such  delusions  nor  produced  by  them  is  to  be 
held  valid. 

"How  far  the  analogy  holds  between  testamentary  capacity 
and  capacity  to  commit  crime,  it  is  not  necessary  to  inquire,  be- 
cause delusion  has  never,  so  far  as  I  can  find,  been  regarded  as  a 
test  in  criminal  cases,  unless  HadfieWs  Case,  27  How.  St.  Tr. 
1282,  is  to  be  excepted  ;  and  all  the  argument  requires  is,  to  show 
that  the  rule,  which  it  has  been  thought  may  be  drawn  from  the 
authorities  in  civil  cases,  has  no  existence,  event  here,  in  the  broad 
and  universal  terms  in  which  the  court  was  requested  to  apply  it 
on  the  trial  of  this  case. 

"  Fortunately  we  are  not  embarrassed  by  any  decisions,  or,  so 
far  as  I  know,  any  dicta  or  expressions  of  single  judges  in  this 
state,  at  variance  with  the  broad  philosophical  doctrine  laid  down 
by  the  judges  who  tried  this  case.  Indeed,  there  seems  to  have 
been  a  strong  leaning  heretofore  in  the  same  general  direction,  as 
is  shown  by  the  quotations  from  charges  of  two  of  our  late  chief 
justices,  Richardson  and  Bell,  in  the  brief  of  the  attorney  general 
for  the  state. 

"  In  view  of  these  -considerations,  we  are  led  to  the  conclusion 
that  the  instruction  given  to  the  jury  in  this  case,  that  '  if  the  de- 
fendant killed  his  wife  in  a  manner  that  would  be  criminal  and 
unlawful  if  the  defendant  were  sane,  that  verdict  should  be,  "  not 
guilty  by  reason  of  insanity;"  if  the  killing  was  the  offspring  or 
product  of  mental  disease  in  the  defendant,'  was  right ;  that  it 
fully  covers  the  only  general,  universal  element  of  law  involved 
in  the  inquiry ;  and  therefore,  that  any  further  step  in  the  direc- 
tion indicated  by  the  requests  would  have  been  an  interference 
with  the  province  of  the  jury,  and  the  enunciation  of  a  proposi- 
tion which  in  its  essence  is  not  law,  and  which  could  not  in  any 
view  safely  be  given  to  the  jury  as  a  rule  for  their  guidance,  be- 
cause for  aught  we  can  know  it  might  have  been  false  in  fact. 


160  MEDICAL    JUKISPKUDENCE    OF    INSANITY. 

"  This  would  seem  to  dispose  of  the  whole  case.  All  the  other 
instructions  given  are  only  the  direct  logical  consequence  of  this 
principle. 

"  Whether  the  defendant  had  a  mental  disease,  as  before  re- 
marked, seems  to  be  as  much  a  question  of  fact  as  whether  he 
had  a  bodily  disease ;  and  whether  the  killing  of  his  wife  was  the 
product  of  that  disease  was  also  as  clearly  a  matter  of  fact  as 
whether  thirst  and  a  quickened  pulse  are  the  product  of  fever. 
That  it  is  a  difficult  question  does  not  change  the  matter  at  all. 
The  difficulty  is  intrinsic,  and  must  be  met  from  whatever 
direction  it  may  be  approached.  Enough  has  already  been  said 
as  to  the  use  of  symptoms,  phases,  or  manifestations  of  the  dis- 
ease as  legal  tests  of  capacity  to  entertain  a  criminal  intent.  They 
are  all  clearly  matters  of  evidence,  to  be  weighed  by  the  jury 
upon  the  question  whether  the  act  was  the  offspring  of  insanity ; 
if  it  was,  a  criminal  intent  did  not  produce  it ;  if  it  was  not,  a 
criminal  intent  did  produce  it  and  it  was  crime. 

"  The  instructions  as  to  insane  impulse  seem  to  be  quite  correct 
and  entirely  within  the  same  principle.  If  the  defendant  had 
an  insane  impulse  to  kill  his  wife,  which  he  could  not  control, 
then  mental  disease  produced  the  act.  If  he  could  have  con- 
trolled it,  then  his  will  must  have  assented  to  the  act,  and  it  was 
not  caused  by  disease,  but  by  the  concurrence  of  his  will,  and  was 
therefore  crime. 

These  instructions  have  now  been  twice  given  to  the  jury  in 
capital  cases  in  this  state — first,  by  Chief  Justice  Perley,  in  State 
v.  Pike,  49  ]S".  H.  399,  6  Am.  Rep.  533,  and  now  again  by  Judge 
Doe,  in  the  case  before  us.  In  State  v.  Pike  no  exceptions  were 
taken  to  this  part  of  the  charge,  and  the  questions  here  raised 
were  not  before  the  whole  court  for  judicial  determination, 
although  they  were  printed  in  the  case  as  transferred,  and  no 
objection  to  their  form  is  understood  to  have  been  made. 

"  But  a  question  was  passed  upon  in  that  case  which,  carried  to 
its  logical  results,  goes  far  toward  settling  most  of  the  questions 
raised  upon  the  instructions  here.  It  was  claimed  that  the  de- 
fendant was  irresponsible  by  reason  of  a  species  of  insanity  called 
dipsomania.  The  court  instructed  the  jury  '  that  whether  there 
is  such  a  mental  disease  as  dipsomania,  and  whether  the  defend- 
ant had  that  disease,  and  whether  the  killing  of  Brown  was  the 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  161 

product  of  such  disease,  were  questions  of  fact  for  the  jury.' 
These  instructions  were  specially  excepted  to  by  the  defendant, 
and  were  held  correct.  This  would  seem  to  be  entirely  inconsist- 
ent with  the  idea  that  either  delusion  or  knowledge  of  right  and 
wrong  is,  as  matter  of  law,  a  test  of  criminal  capacity  ;  and  would 
also  seem  to  be  about  equivalent  to  holding,  in  general  terms, 
that  it  was  for  the  jury  to  say  whether  the  killing  was  the  product 
of  mental  disease,  and  return  their  verdict  of  '  guilty '  or  '  not 
guilty  by  reason  of  insanity '  as  they  found  that  fact  to  be. 

"  We  should  be  slow  to  establish  any  doctrine  on  this  important 
subject,  which  we  could  see  would  be  likely  to  result  in  the 
escape  of  malefactors  from  punishment,  or  afford  encouragement 
to  a  fictitious  defense  of  insanity ;  and  no  considerations  of  con- 
venience or  ease  in  the  administration  of  the  law,  as  before 
observed,  should  be  allowed  to  weigh  at  all  against  adhering  to 
any  doctrine  or  any  course  of  practice  that  rests  upon  sound 
reason,  or  that  appears  to  be  necessary  for  the  attainment  of  right 
results,  whether  such  doctrine  or  practice  is  supported  by  uniform 
authority  or  not. 

"  Still,  it  is  no  objection  to  the  course  of  the  judges  who  tried 
this  case  and  who  tried  Pike's  Case,  that  it  relieves  the  subject 
of  some  of  its  most  formidable  difficulties  as  far  as  the  court  is 
concerned,  and  at  the  same  time  furnishes  at  least  one  clear  and 
explicit  direction  which  the  jury  can  understand. 

"No  untried  or  doubtful  theory  is  adopted.  The  instruction 
given  was  always  law,  and  always  must  be  law,  while  justice  is 
administered  upon  principles  at  all  consonant  with  the  calls  of 
civilization  and  humanity.  The  only  objection  is,  that  the  court 
did  not  go  further,  and  undertake  to  explore  a  region  where  all 
is  doubt,  uncertainty,  and  confusion  upon  the  authorities,  and 
where,  upon  principle,  they  had  no  right  to  go  at  all ;  that  they 
did  not  undertake  to  lay  down  a  rule  where,  if  we  could  allow 
ourselves  to  investigate  the  fact,  we  should  probably  find  there  is 
and  can  be  no  rule,  nor  to  enunciate  as  law  a  pure  matter  of  fact 
which  can  only  be  absolutely  known  to  the  Almighty. 

"  I  xn&y  add  that  it  confirms  me  in  the  belief  that  we  are  right, 

or  at  least  have  taken  a  step  in  the  right  direction,  to  know  that 

the  view  embodied  in  this  charge  meets  the  approval  of  men  who, 

from  great  experience  in  the  treatment  of  the  insane,  as  well  as 

*  11 


162 


MEDICAL    JURISPRUDENCE    OF    INSANITY. 


careful  and  long  study  of  the  phenomena  of  mental  disease,  are 
infinitely  better  qualified  to  judge  in  the  matter  than  any  court 
or  lawyer  can  be.     See  Eay,  Medical  Jurisprudence,  5th  ed.  §  44. 

"  The  satisfaction  with  which  the  charge  to  the  jury  in  State 
v.  Pike,  49  K  H.  399,  6'  Am.  Eep.  533,  is  understood  to  have 
been  received  by  the  most  enlightened  members  of  the  medical 
profession  proves  to  my  mind,  not  that  we  have  thrown  down 
old  landmarks  to  adopt  any  theory  based  on  a  partial,  imperfect, 
or  visionary  view  of  the  subject,  but  that  in  a  matter  where  we 
must  inevitably  rely  to  a  great  extent  upon  the  facts  of  science, 
we  have  consented  to  receive  those  facts  as  developed  and  ascer- 
tained by  the  researches  and  observations  of  our  own  day,  instead 
of  adhering  blindly  to  dogmas  which  were  accepted  as  facts  of 
science  and  erroneously  promulgated  as  principles  of  law  fifty  or 
a  hundred  vears  ago. 

"  The  last  instruction,  that  the  defendant  was  to  be  acquitted 
on  the  ground  of  insanity  unless  the  jury  were  satisfied  beyond  a 
reasonable  doubt  that  the  killing  was  not  produced  by  mental 
disease,  was  in  accordance  with  State  v.  Bartlett,  43  ET.  H.  224, 
80  Am.  Dec.  154,  and  was  correct.     Exceptions  overruled." 

§  9.  Time  of  application  of  tests. 

All  of  the  cases  agree  that  the  tests  as  to  the  existence  of  in- 
sanity as  a  defense  to  a  criminal  accusation  are  to  be  applied  with 
reference  to  the  exacttime  of  the  commission  of  the  offense.1  But 
it  is  proper  in  a  prosecution  for  homicide  by  poisoning  to  submit 
to  the  jury  the  question  of  the  sanity  or  insanity  of  the  accused 
at  the  time  when  the  poison  was  purchased,  as  well  as  at  the 
time  when  it  was  administered.2 

§  10.  Insanity  as  affecting  the  degree  of  crime. 

The  general  rule  is  that  there  is  no  condition  intermediate  be- 
tween sanity  or  insanity,  which  may  mitigate  crime  while  not 

1  See  cases  with  relation  to  tests,  above  cited.     And  see  also  State  v.  Cole- 
man, 27  La.  Ann.  691;  State  v.  Hays,  22  La*  Ann.  39;  State  v.  Pratt,  1  Honst. 
Crim.  Cas.  249;  People  v.  Clendennin,  91  Cal.  35;  Clark  v.  State,  8  Tex. 
App.  350;  Smith  v.  State,  22  Tex.  App.  317. 
Laros  v.  Com.  84  Pa.  200. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  163 

excusing  it.1  A  conviction  of  a  lower  degree  cannot  be  had  on 
the  theory  that  the  defendant's  mind  was  unsound  to  a  degree 
rendering  him  incapable  of  deliberation,  where  he  knew  the 
nature  of  the  act.2  Thus,  where  a  person  charged  with  murder 
was  capable  of  knowing  that  the  act  was  wrong,  a  partial  defect  of 
understanding  which  might  cause  him  more  readily  to  give  away 
to  passion  than  an  ordinarily  reasonable  man  cannot  be  considered 
for  the  purpose  of  reducing  the  offense  to  manslaughter,  the 
provocation  must  at  least  be  such  as  to  stir  the  resentment  of  a 
reasonable  man.3  And  an  instruction  that  if  the  accused  was  not 
in  a  frame  of  mind  to  deliberate  and  premeditate,  the  killing 
would  not  be  murder,  is  objectionable  as  vague  and  ambiguous, 
and  not  showing  the  measure  of  criminal  responsibility.4  But 
evidence  of  insanity  is  admissible  to  show  the  absence  of  any  de- 
liberative or  premeditative  design,5  and  an  instruction  that  if  the 
accused  acted  with  malice  he  is  guilty  of  murder  though  he  may 
have  labored  under  partial  insanity  is  erroneous,  as  there  can  be 
no  such  thing  as  malice  without  mental  accountability,  and  this 
cannot  coexist  with  incapacity  to  distinguish  right  and  wrong.6 
And  an  instruction  that  if  the  accused  was  insane  at  the  time  the 
jury  must  declare  him  not  guilty,  without  regard  to  the  degree  of 
insanity,  is  too  broad  and  cannot  be  sustained  as  a  proposition  of 
law.7  But  it  has  been  held  that  one  whose  mind  was  so  far  im- 
paired as  to  render  him  incapable  of  a  deliberate,  premeditated 
murder,  but  who  was  not  totally  irresponsible  by  reason  of  insan- 
ity, should  be  convicted  of  murder  in  the  second  degree  only,8 
and  that  moral  insanity  should  be  considered  in  determining  the 

1  Sage  v.  State,  91  Ind.  141;  United  States  v.  Lee,  4  Mackey,  489,  54  Am. 
Eep.  293;  State  v.  Kotovsky,  11  Mo.  App.  584;  Sindram  v.  People,  1  N.  Y. 
Crim.  Eep.  448. 

2  State  v.  Kotovsky,  11  Mo.  App.  584. 
8  People  v.  Hurtado,  63  Cal.  288. 
4Dejarnette  v.  Com.  75  Va.  867. 

s  Sindram  v.  People,  1  N.  Y.  Crim.  Eep.  448;  Sage  v.  State,  91  Ind.  141. 

6  Grissom  v.  State,  62  Miss.  167. 

■>  People  v.  Best,  39  Cal.  690. 

8  Anderson  v.  State,  43  Conn.  514,  21  Am.  Eep.  669;  Cottell  v.  State,  12 
Ohio,  C.  C.  467,  5  Ohio  Dec.  472;  Green  v.  Com.  83  Pa.  75;  Pistorius  v. 
Com.  84  Pa.  158;  Willis  v.  Com.  32  Gratt.  928. 


164:  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

degree  of  the  offense ;'  and  that  evidence  of  excitement  and  ab- 
normal sensitiveness  resulting  from  sunstroke  and  a  fall  and 
other  accidents,  though  not  sufficient  to  establish  irresponsibility, 
will  reduce  the  crime  from  murder  in  the  first  degree  to  murder 
in  the  second  degree.'2  So,  an  instruction  that  if  the  defendant 
■  was  not  insane  at  the  time  of  the  shooting  he  ought  to  be  found 
guilty  as  charged  in  the  indictment,  is  not  subject  to  the  objection 
that  it  precluded  the  jury  from  finding  a  lesser  degree  of  the  offense 
where  the  shooting  was  admitted.3  And  an  instruction  with  ref- 
erence to  murder  in  the  second  degree  is  not  reversible  error 
where  the  homicide  was  murder  in  the  first  degree,  if  the  accused 
was  not  insane,  as  such  an  instruction  would  be  clearly  beneficial 
to  the  accused.4  But  where  a  person  committing  a  homicide  was 
conscious  of  what  he  was  doing  and  capable  of  distinguishing  be- 
tween right  and  wrong,  and  meditated  upon  the  purpose  of  com- 
mitting the  act,  he  must  be  found  guilty  of  murder  in  the  first 
degree  though  he  was  deranged.6 

II.  Partial  Insanity. 

§  1.  Definitions. 

Partial  insanity  is  defined  to  be  mental  unsoundness  always  ex- 
isting, although  occasionally  manifested, — monomania.6  And 
monomania  is  defined  as  a  derangement  of  the  mental  faculties 
confined  to  some  particular  idea  or  object  of  desire  or  aversion ; T 
a  perversion  of  the  understanding  in  regard  to  a  single  object  or 
a  small  number  of  objects,  with  a  predominance  of  mental  excite- 
ment.8    A  person  may  be  insane  upon  one  subject  and  yet  sane 

'Anderson  v.  State,  43  Conn.  514,  21  Am.  Kep.  664.  And  see  Jones  v. 
Com.  75  Pa.  403. 

s  People  v.  Conroy,  33  Hun,  119. 
s  People  v.  Hobson,  17  Cal.  424. 

4  Boren  v.  State,  32  Tex.  Crini.  Eep.  637. 

5  Nevling  v.  Com.  98  Pa.  323. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see,  Deliberation,  Pre- 
meditation, Degree  of  Crime,  Degree  of  Insanity,  Mitigation,  Malice, 
Responsibility,  Head  Injury,  Homicide,  Tests  of  Insanity. 

6  Black,  Law  Diet,  citing  3  Add.  79. 

''  Owing's  Case,  1  Bland,  Ch.  370,  17  Am.  Dec.  311. 
8  Pve  Gannon's  Will  (C.  P.)  3  Misc.  329. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  165 

upon  all  others,1  and  the  presence  of  the  power  of  consecutive 
and  rational  thought  does  not  disprove  the  existence  of  insanity.2 

§  2.  Test  of  criminal  responsibility. 
One  may  be  partially  insane  and  yet  responsible  for  his  crimi- 
nal acts.3  Partial  insanity  does  not  confer  criminal  irresponsibil- 
ity where  the  party  was  not  instigated  by  his  madness  to  perpe- 
trate the  criminal  act.4  Partial  insanity  on  other  subjects  does 
not  excuse  or  justify  the  commission  of  crime.5  Where  it  is 
relied  upon  as  a  defense,  the  crime  charged  must  have  been  the 
product  of  an  insane  condition,  and  connected  with  it  as  effect 
with  cause,  and  not  the  result  of  sane  reasoning  or  mere  unnatu- 
ral motives  of  which  the  party  may  be  capable,  notwithstanding 
his  disorder.8  And  where  a  person  accused  of  crime  is  not  shown 
to  have  been  insane  generally,  evidence  as  to  unsoundness  upon 
any  subject  except  that  which  is  under  investigation  is  incompe- 
tent.' Partial  insanity  is  an  excuse  for  crime  only  when  it  de- 
prives the  party  of  his  reason  in  regard  to  the  act,8  and  takes 
from  him  the  freedom  of  moral  action.9  The  test  of  criminal 
responsibility,  like  that  in  cases  of  general  insanity,  is,  Had  the 
accused  sufficient  capacity  at  the  time  of  committing  the  act  to 
distinguish  between  right  and  wrong  with  reference  to  it  ? 10     And 

1  Cutler  v.  Zollinger,  117  Mo.  92. 

2  Com.  v.  Meredith,  17  Phila.  90;  Bennett  v.  State  (Wis.)  4  Crim.  L. 
Mag.  378, 

However  apparently  convenient  may  be  the  legal  use  of  the  expression 
"  partial  insanity,"  alienists  claim  that  it  has  led  to  serious  misconceptions. 
S.  V.  C. 

3  State  v.  Pagels,  92  Mo.  300  ;  State  v.  Harrison,  36  W.  Va.  729,  18  L.  E. 
A.  224. 

4  Bovard  v.  State,  30  Miss.  600  ;  Com.  v.  Werling,  164  Pa.  559. 

» State  v.  Spencer,  21  N.  J.  L.  196 ;  Com.  v.  McCaulley,  16  Phila.  502. 
« Guiteau's  Case,  10  Fed.  Bep.  161 ;  Stevens  v.  State,  31  Ind.  485,  99 
Am.  Dec.  634  ;  Parsons  v.  State,  81  Ala.  577,  60  Am.  Bep.  193. 
■>  Com.  v.  McCaulley,  16  Phila.  502. 

8  Freeman  v.  People,  4  Denio,  9,  46  Am.  Dec.  216  ;  State  v.  Danby,  1 
Houst.  Crim.  Bep.  175  ;  State  v.  Pratt,  1  Houst.  Crim.  Bep.  249. 

9  Com.  v.  McCaulley,  16  Phila.  502. 

10  State  v.  Pratt,  1  Houst.  Crim.  Bep.  249 ;  People  v.  Hurtado,  63  Cal. 
288 ;  State  v.  Nixon,  32  Kan.  205 ;  Grissom  v.  State,  62  Miss.  167 ;  Giebel 
v.  State,  28  Tex.  App.  151 ;  State  v.  Harrison,  36  W.  Va.  729,  18  L.  B.  A. 
224;  United  States  v.  Bidgeway,  31  Fed.  Bep.  144 ;  Trial  of  Kinloch,  25 
How.  St.  Tr.  891,  997. 


166  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

partial  insanity  will  not  excuse  unless  the  accused  did  not  have 
such  knowledge,1  or  did  not  know  the  nature  or  quality  of  the 
act,2  or  unless  he  had  not  power  sufficient  to  apply  such  knowl- 
edge to  his  own  case.3  And  some  of  the  cases  have  also  held 
that  he  must  have  will  power  sufficient  to  restrain  the  impulse  to 
-  commit  crime  which  may  arise  from  a  diseased  mind  ;*  and  that 
partial  insanity  which  will  excuse  crime  must  control  the  will 
and  make  the  commission  of  the  act  a  duty  of  overruling  neces- 
sity.5 But  where  partial  insanity  goes  to  the  extent  of  breaking 
down  the  distinction  between  a  knowledge  of  right  and  wrong  as 
to  the  particular  act,  it  is  immaterial  whether  the  sufferer  be 
insane  as  to  other  matters  or  not.6  And  partial  insanity,  leaving 
one  committing  a  homicide  without  power  to  deliberate  or 
premeditate,  will  reduce  the  offense  to  murder  in  the  second 
degree.7 

Under  the  Indiana  statutory  defense  of  mental  unsoundness, 
however,  it  cannot  be  said  that  a  man  may  be  partially  insane 
and  not  wholly  so,8  and  partial  insanity  is  not  a  defense  in  a  crim- 
inal prosecution,  the  mental  capacity  of  the  accused,  whether 
weak  or  strong,  not  affecting  the  question  of  punishment,  unless 
it  is  determined  that  he  is  insane  within  the  meaning  of  the  law.9 

1  State  v.  Lawrence,  57  Me.  574  ;  State  y.  Huting,  21  Mo.  464 ;  Bovard 
v.  State,  30  Miss.  600;  People  v.  Taylor,  138  N.  T.  398;  Com.  v.  Sayres, 
12  Phila,  553  ;  Com.  y.  Freeth,  5  Pa.  L.  J.  445  ;  Dejarnette  v.  Com.  75 
Ya.  867;  State  v.  Harrison,  36  W.  Ya,  729,  18  L.  E.  A.  224;  United  States 
y.  Holmes,  1  Cliff.  98. 

2  State  v.  Lawrence,  57  Me.  574 ;  People  v.  Taylor,  138  N.  Y.  398  ;  Com. 
y.  Sayres,  12  Phila.  533  ;  Com.  y.  Freeth,  5  Pa.  L.  J.  445  ;  Dejarnette  v. 
Com.  75  Ya,  867 ;  State  v.  Harrison,  36  W.  Ya.  729,  18  L.  E.  A.  224 ; 
United  States  v.  Holmes,  1  Cliff.  98. 

3  Com.  y.  Sayres,  12  Phila.  533 ;  Com.  v.  Freeth,  5  Pa.  L.  J.  445 ;  De- 
jarnette y.  Com.  75  Ya.  867 ;  United  States  y.  Holmes,  1  Cliff.  98. 

4  Dejarnette  v.  Com.  75  Ya.  867  ;  Com.  y.  Yfinnemore,  1  Brewst.  356. 

5  Com.  y.  Mosler,  4  Pa.  256  ;  Com.  v.  Freeth,  5  Pa.  L.  J.  455.  As  to 
Moral  insanity  and  Uncontrollable  impulse,  see  §§  5-7,  infra. 

6  Grissom  y.  State,  62  Miss.  167. 

''  Cottell  y.  State,  12  Ohio,  C.  C.  467,  5  Ohio  Dec.  472. 

f  Walker  y.  State,  102  Ind.  502. 

9  Warner  y.  State,  114  Ind.  137. 

For  Dr.  CleYenger's  discussion  of  this  subject,  see  Remissions,  Lucid 
Intervals,  Monomania,  Paranoia,  Responsibility,  Will  Rower,  Impulse, 
Control. 


LEGAL   ADJUDICATIONS    IN   CRIMINAL   CASES.  167 

§  3.  Delusions — definition  and  nature. 
An  insane  delusion  within  the  meaning  of  the  criminal  law  is 
an  unreasonable  and  incorrigible  belief  in  the  existence  of  facts 
which  are  either  impossible  absolutely,  or  impossible  under  the 
circumstances  of  the  individual ;'  a  fixed  belief  which  is  contrary 
to  universal  experience  and  known  natural  laws  ;2  a  belief  in  the 
existence  of  facts  in  which  no  rational  person  would  believe.3 
Delusions  which  will  affect  criminal  responsibility,  however,  are 
delusions  of  the  senses,  or  such  as  relate  to  facts  or  objects,  and 
not  mere  wrong  notions  or  impressions  of  a  moral  nature ;  the 
aberration  must  be  mental,  not  moral.*  And  an  instruction  with 
relation  to  delusions  as  an  excuse  for  crime  should  distinguish 
between  those  which  are  and  which  are  not  insanity  proper.6  A 
belief  in  spirits,  and  that  spirits  whispered  to  the  accused  and 
bade  him  do  a  criminal  act,  of  itself  furnishes  no  defense,  but 
may  be  evidence  for  the  jury  upon  which  to  base  its  judgment 
with  regard  to  his  understanding  and  comprehension.6  And  the 
commission  of  a  homicide  for  the  purpose  of  being  hanged  shows 
a  morbid  state  of  mind  only,  and  not  an  insane  delusion  which 
will  relieve  from  criminal  responsibility.7  So,  a  common  feature 
of  delusion  is  a  belief  on  the  part  of  the  person  that  he  is  perfectly 
sane,  and  his  assertion  that  he  is  so  is  not  conclusive  against  him.8 
And  a  belief  on  the  part  of  the  accused  that  he  had  not  slept  for 
eight  years  is  an  insane  delusion  on  that  subject.9  A  belief 
founded  upon  reason  and  reflection,  however,  is  not  an  insane 
delusion,  however  absurd  it  may  be.10  The  use  of  the  word  "de- 
lusion "  in  an  instruction  in  a  criminal  action  in  which  insanity 
was  interposed  as  a  defense  when  partial  insanity  is  meant,  the 

1  State  v.  Lewis,  20  Nev.  333  ;  Guiteau's  Case,  10  Fed.  Eep.  161. 
8  Com.  v.  Meredith,  14  W.  N.  C.  188. 

3  Com.  v.  Meredith,  17  Phila.  90. 

4  Eeg.  v.  Burton,  3  Fost.  &  F.  772  ;  Eeg.  v.  Townley,  3  Fost.  &  F.  839 ; 
State  v.  Pike,  49  N.  H.  399,  6  Am.  Eep.  533 ;  Willis  v.  People,  5  Park. 
Crim.  Eep.  621. 

5  Gunter  v.  State,  83  Ala.  96. 

6  People  v.  Waltz,  50  How.  Pr.  204. 
1  Eeg.  v.  Burton,  3  Fost.  &  F.  772. 
8  State  v.  EeideU,  9  Houst.  470. 

*  United  States  v.  King,  34  Fed.  Eep.  302. 
10  Guiteau's  Case,  10  Fed.  Eep.  161. 


168  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

word  "  delusion "  having  no  particular  application  to  the  facts 
of  the  case,  will  not  be  deemed  to  have  misled  the  jury  where 
the  evidence  and  the  connection  in  which  the  word  was  used 
make  the  meaning  clear.1 

§  4.     Delusions — effect  on  criminal  responsibility. 

One  who  is  led  to  the  commission  of  a  criminal  act  by  an  in- 
sane delusion  controlling  his  will  and  judgment  is  not  criminally 
responsible  therefor,2  the  question  for  the  jury  in  a  prosecution 
therefor  being,  Did  he  do  the  act  under  a  delusion  believing  it  to 
be  other  than  it  was?3  and  the  test  of  criminal  responsibility 
being  the  capacity  to  distinguish  between  right  and  wrong  at  the 
time  of  the  commission  of  the  act  and  in  respect  thereto,  and  the 
absence  of  insane  delusions  with  reference  to  that  subject.4  One 
who  commits  a  crime  under  the  impulse  of  an  insane  delusion  is 
punishable  if  he  knew  at  the  time  that  it  was  wrong  and  that  he 
was  acting  contrary  to  law.6  The  mere  existence  of  an  insane  de- 
lusion is  no  defense  unless  it  renders  the  person  incapable  of 
knowing  what  he  was  doing  or  of  forming  a  criminal  intent.6 
And  a  person  committing  an  offense  under  the  influence  of  an 
insane  delusion  is  responsible  therefor  where  the  delusion  was 
only  partial.7  The  question  as  to  the  existence  of  an  insane  delu- 
sion is  important  only  as  it  throws  light  upon  the  question  of  the 
knowledge  or  capacity  of  the  party  to  know  right  from  wrong,* 
though  he  is  not  responsible  where  the  delusion  is  such  that, he 
did  not  know  the  nature  and  consequences  of  his  act,  and  that  it 
was  either  wrong  or  unlawful.9 

1  People  v.  Schmitt,  106  Cal.  48. 

2  Stevens  v.  State,  31  Ind.  486,  99  Am.  Dec.  634;  Eeg.  v.  Townley,  3 
Tost.  &  F.  839. 

3  Eeg.  v.  Townley,  3  Fost.  &  F.  839. 

4  Casey  v.  People,  31  Hun,  158. 

6  State  v.  Mewherter,  46  Iowa,  88;  Pouts  v.  State,  4  G.  Greene,  500; 
State  v.  Murray,  11  Or.  413;  Wilcox  v.  State,  94  Tenn.  106;  Bellingham's 
Case,  1  Collinson,  Lunacy,  636. 

6  Hall  v.  Com.  22  W.  N.  C.  25. 

1  Humphreys  v.  State,  45  Ga.  190. 

8  Guiteau's  Case,  10  Fed.  Rep.  161. 

9  Parsons  v.  State,  81  Ala.  577,  6  Am.  Eep.  193;  People  v.  Pine,  2  Barb. 
566;  Eeg.  v.  Townley,  3  Post.  &  P.  839. 


LEGAL   ADJUDICATIONS    IN    CRIMINAL    CASES.  169 

So  the  fact  that  a  person  has  an  insane  delusion  upon  one  sub- 
ject does  not  affect  his  responsibility  for  a  crime  with  reference  to 
some  other  matter  not  connected  with  that  particular  delusion,1  if 
he  is  capable  of  distinguishing  between  right  and  wrong  as  ap- 
plied to  the  criminal  act.2  Delusion  is  not  a  legal  test  of  in- 
sanity as  an  excuse  for  a  criminal  act  where  the  act  is  in  no  way 
connected  with  the  delusion  or  produced  by  it.3  And  it  is  not- 
every  delusion,  though  relating  to  the  particular  subject,  which 
will  relieve  from  criminal  responsibility ;  a  party  laboring  under 
a  particular  delusion  must  be  considered  in  the  same  situation 
with  relation  to  criminal  responsibility  as  if  the  facts  in  respect  to 
which  the  delusion  exists  were  real.4  And  criminal  responsibility 
is  relieved  only  when  the  facts  or  state  of  facts  believed  in  under 
the  influence  of  the  delusion  would,  if  actually  existing,  have  jus- 
tified the  act  or  rendered  it  excusable.5 

Thus,  one  who  commits  a  criminal  act  under  the  delusion  that 
the  Almighty  has  commanded  him  to  do  it  is  not  criminally  re- 
sponsible.6 Nor  is  one  who  commits  a  homicide  under  a  delusion 
that  the  person  killed  was  about  to  do  him  a  great  personal  in- 
-jury,  and  that  he  is  acting  in  self-defense.7  But  a  person  is  crim- 
inally responsible  for  an  act  committed  while  laboring  under  the 
delusion  that  he  is  redressing  or  avenging  some  injury  or  griev- 

1  State  v.  Gut,  13  Minn.  343;  State  v.  Lawrence,  57  Me.  574;  State  v. 
Windsor,  5  Harr.  (Del.)  512;  Sindram  v.  People,  88  N.  Y.  196;  Com.  v. 
Mosler,  4  Pa.  264;  United  States  v.  Eidgeway,  31  Fed.  Eep.  144. 

2 State  v.  Windsor,  5  Harr.  (Del.)  512;  United  States  v.  Eidgeway,  31 
Fed.  Eep.  144;  Wilcox  v.  State,  94  Tenn.  106. 

3  State  v.  Jones,  50  N.  H.  369,  9  Am.  Eep.  242;  Eoberts  v.  State,  3  Ga. 
310;  Bovard  v.  State,  30  Miss.  600;  State  v.  Simms,  71  Mo.  538;  Howe  v. 
State,  11  Neb.  537,  38  Am.  Eep.  375. 

4  State  v.  Mewherter,  46  Iowa,  88;  M'Naghten's  Case,  10  Clark  &  F.  200» 
6  Bos  well  v.  State,  63  Ala.  307,  35  Am.  Eep.  20;  Smith  v.  State,  55  Ark. 

259;  Fouts  v.  State,  4  G.  Greene,  500;  Com.  v.  Sogers,  7  Met.  500,  41  Am. 
Dec.  458;  Cunningliam  v.  State,  56  Miss.  269,  21  Am.  Eep.  360;  Tliurman 
v.  State,  32  Neb.  224;  People  v.  Taylor,  138  N.  Y.  398;  Com.  v.  Freeth, 
5  Pa.  L.  J.  455;  Com.  v.  Winnemore,  1  Brewst.  356;  Beg.  v.  Pate,  Eay, 
Medical  Jurisprudence,  §  309.  See  also  Wesley  v.  State,  37  Miss.  327,  75 
Am.  Dec.  62. 

6  Guiteau's  Case,  10  Fed.  Eep.  161. 

'People  v.  Pine,  2  Barb.  566;  People  v.  Taylor,  138  N.  Y.  398;  Beg.  v. 
Pate,  Eay,  Medical  Jurisprudence,  £  309. 


170  MEDICAL   JUBISPEUDENCE    OF    INSANITY. 

ance,  or  producing  or  obtaining  some  profit  or  public  benefit,1  or 
that  another  is  exercising  a  malign  influence  over  him.2  And  an 
insane  delusion  entertained  by  a  convict  that  another  is  acting  as 
a  spy  upon  him,  and  has  betrayed  Ins  plan  of  escape  from  prison, 
does  not  affect  the  criminal  nature  of  his  act  in  killing  him.3  And 
one  who  deliberately  kills  another  in  revenge  for  adultery  with 
his  wife  is  not  protected  by  the  fact  that  he  labored  under  a  de- 
lusion as  to  her  character  for  virtue.4  Xor  is  a  person  who  kills 
another  relieved  from  responsibility  by  a  delusion  that  the  latter 
was  trying  to  marry  his  mother  against  her  will,  as  that,  if  it  were 
true  would  not  have  warranted  the  killing.5  An  instruction  that 
a  delusion  will  not  absolve  from  guilt  unless  the  facts  if  real 
would  excuse  it,  though  technically  correct,  is  incomplete  when  it 
fails  to  tell  the  jury  what  facts  would  excuse.6 

§  5.     3foral  insanity — defined. 

Moral  insanity  is  defined  to  be  incapacity,  from  disease,  to  con- 
trol one's  conduct  according  to  one's  knowledge  ;  uncontrollable 
morbid  impulses,  disability  of  the  will  to  refrain  from  what  one 
knows  is  wrong  and  punishable  ;  a  morbid  perversion  of  the  affec- 
tions and  inclinations  and  temper  independent  of  any  disease  or 
delusion  operating  directly  upon  the  intellect,7  a  morbid  state  of 
the  affections  and  passions  or  unsettling  of  the  moral  system,  the 
mental  faculties  remaining  normal  and  sound;8  an  irresistible  im- 
pulse to  commit  an  act  coexisting  with  mental  sanity.9  And 
an   irresistible   impulse  is  a  moral   or   homicidal   insanity  con- 

1  Humphreys  v.  State,  45  Ga.  190;  M'Xaghten's  Case,  10  Clark  &  F.  200; 
Keg.  v.  Pate,  Kay,  Medical  Jurisprudence,  ^  309. 

2  Reg.  v.  Pate,  Ray,  Medical  Jurisprudence,  §  309. 

3  People  v.  Taylor,  138  N.  T.  398. 

4  Hill  v.  State,  64  Ga.  463. 

5  Boiling  v.  State,  54  Ark.  588,  601. 

6  Boiling  v.  State,  54  Ark.  601. 

For  Dr.  Clevenger's  discussion  on  this  subject  see  Delusion,  Partial  In- 
sanity, Responsibility,  Definitions,  Tests  of  Insanity,  chap.  LT.  pp.  18 
et  seq. 

1  Abbott's  Law  Dictionary. 

8Beasley  v.  State,  50  Ala.  149,  20  Am.  Rep.  292. 

*  Boswell  v.  State,  63  Ala.  307,  35  Am.  Rep.  20;  State  v.  Potts,  100 
N.  C.  457. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  171 

sisting  of  an  irresistible  inclination  to  kill  or  commit  some  other 
offense ;  some  unseen  pressure  on  the  mind  drawing  it  to  conse- 
quences which  it  sees  but  cannot  avoid,  holding  it  under  a  coer- 
cion which,  while  it  clearly  perceives  the  results,  it  is  incapable 
of  resisting.1 

§  6.  The  rule  that  moral  mania  is  not  a  defense. 

Moral  mania  by  which  the  party  may  be  compelled  to  do  an  act 
wrong  in  itself  and  criminal  by  a  morbid  irresistible  impulse,  as 
an  independent  state  which  will  relieve  from  responsibility  in  the 
absence  of  any  indications  of  disturbed  reason,  is  not  recognized 
in  a  number  of  the  states,2  and  in  England.3  And  moral  insanity, 
or  insanity  of  the  moral  feelings  while  a  sense  of  right  and  wrong 
remains,  does  not  affect  criminal  responsibility.4  Under  this  doc- 
trine the  fact  that  a  person  was  impelled  by  an  irresistible  and 
overwhelming  impulse  to  commit  a  criminal  act  constitutes  no 
defense.6     That  form  of  insanity  in  which  one  has  capacity  to 

1  Dejarnette  v.  Com.  75  Va.  867;  Flanagan  v.  People,  52  N.  Y.  467,  11 
Am.  Eep.  731. 

The  old  term  "moral  insanity"  has  been  properly  abandoned.     S.  V.  C. 
For  Dr.  Clevenger's  discussion  on  this  subject,  see  Moral  Insanity,  Im- 
morality, Homicidal  Impulse,  Irresistible  Impulse,   Obsessions. 

2  People  v.  Kernaghan,  72  Cal.  609;  People  v.  McDonell,  47  Cal.  134; 
Evans  v.  Arnold,  52  Ga.  169;  Fogarty  v.  State,  80  Ga.  450;  Anderson  v. 
State,  42  Ga.  9;  Loyd  v.  State,  45  Ga.  57;  Choice  v.  State,  31  Ga.  424; 
State  v.  Coleman,  27  La.  Ann.  691;  Spencer  v.  State,  69  Md.  28;  Cun- 
ningham v.  State,  56  Miss.  269,  21  Am.  Eep.  360;  State  v.  Miller,  111  Mo. 
542;  Walker  v.  People,  88  N.  Y.  86;  People  v.  Montgomery,  13  Abb.  Pr. 
N.  S.  207;  State  v.  Potts,  100  N.  C.  457;  State  v.  Brandon,  8  Jones,  L.  463; 
State  v.  Yarborough,  39  Kan.  581;  Graves  v.  State,  45  N.  J.  L.  347,  46  Am. 
Eep.  778;  Boswell  v.  State,  63  Ala.  307,  35  Am.  Eep.  20;  Beasley  v.  State, 
50  Ala.  149,  20  Am.  Bep.  292.  These  Alabama  cases  have  been  overruled. 
For  present  rule  in  Alabama,  see  next  section. 

3  Beg.  v.  Burton,  3  Fost.  &  F.  772;  Eeg.  v.  Haynes,  1  Fost.  &  F.  666; 
Eeg.  v.  Barton,  3  Cox,  C.  C.  275;  Beg.  v.  Stokes,  3  Car.  &  K.  185;  Eeg.  v. 
Pate,  1  Bennett  &  H.  Lead.  Cas.  96,  Bay,  Medical  Jurisprudence,  §  309; 
Eeg.  v.  Oxford,  9  Car.  &  P.  525;  Eeg.  v.  Higginson,  1  Car.  &  K.  129;  Eeg. 
v.  Layton,  4  Cox,  C.  C.  149;  Eeg.  v.  Townley,  3  Fost.  &  F.  839. 

4  Eeg.  v.  Burton,  3  Fost.  &  F.  772;  State  v.  Brandon,  8  Jones,  L.  463. 

6  People  v.  Ward,  105  Cal.  335;  Marceau  v.  Travelers'  Ins.  Co.  101  Cal. 
338;  Fogarty  v.  State,  80  Ga.  450;  State  v.  Scott,  41  Minn.  365;  People  v. 
Mills,  98  N.  Y.  176;  People  v.  Waltz,  50  How.  Pr.  204;  State  v.  Williamson, 


172  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

distinguish  right  from  wrong,  but  no  power  to  choose  between 
them,  is  not  recognized  as  a  justification  for  a  criminal  act.1  An 
uncontrollable  impulse  is  not  a  ground  of  criminal  irresponsibility 
where  the  perpetrator  was  fully  conscious  that  his  act  was  wrong 
and  criminal,"  or  where  he  knows  its  nature,  character,  and  con- 
sequences/ The  test  of  criminal  responsibility  is  not  the  power 
to  refrain  from  doing  what  is  known  to  be  wrong,4  but  whether 
the  accused  at  the  time  of  committing  the  act  knew  its  character 
and  nature,  and  that  it  was  a  wrongful  one ; 5  but  there  is  no  crim- 
inal responsibility  for  an  act  committed  under  an  uncontrollable 
impulse  arising  from  mental  disease  which  overwhelms  reason, 
conscience,  and  judgment,  depriving  the  party  of  power  to  distin- 
guish between  right  and  wrong.6 

§  7.  The  contrary  rule. 
The  doctrine  that  moral  insanity  going  to  the  extent  of  destroy- 
ing free  agency  and  moral  responsibility  excuses  crime  when  es- 
tablished by  satisfactory  evidence7  is  applied  by  the  courts  of 

106  Mo.  162;  State  v.  Kotovsky,  74  Mo.  247;  State  v.  Erb,  74  Mo.  199; 
State  v.  Pagels,  92  Mo.  300;  United  States  v.  Holmes,  1  Cliff.  98;  United 
States  t.  Faulkner,  35  Fed.  Kep.  730;  United  States  v.  Young,  25  Fed. 
Eep.  710;  Huntington's  Trial,  447. 

'Flanagan  v.  People,  52  X.  T.  467,  11  Am.  Eep.  731;  Casey  v.  People,  31 
Hun,  158,  2  X.  Y.  Crim.  Eep.  187;  People  v.  Waltz,  50  How.  Pr.  204;  People 
v.  Carpenter,  102  X.  Y.  238;  People  v.  Montgomery,  13  Abb.  Pr.  X.  S.  207. 

2  State  v.  O'Xeil,  51  Earn  651;  State  v.  Xixon,  32  Kan.  205;  State  v.  Mowry, 
37  Kan.  369;  People  v.  Carpenter,  102  X.  Y.  238;  Walker  v.  People,  1  X.  Y. 
Crim.  Eep.  7,  22;  People  v.  Coleman,  1  X.  Y.  Crim.  Eep.  1;  State  y.  Alex- 
ander, 30  S.  C.  74,  14  Am.  St.  Eep.  879;  State  v.  Levelle,  34  S.  C.  120; 
Wilcox  y.  State,  94  Tenn.  106;  Eeg.  v.  Haynes,  1  Fost.  &  F.  666. 

3  State  y.  Harrison,  36  W.  Ya.  729,  18  L.  E,  A.  224;  People  v.  Clenden- 
nin,  91  CaL  35;  People  v.  Hoin,  62  Cal.  120,  45  Am.  Eep.  651. 

■•State  v.  Bundy,  24  S.  C.  439,  58  Am.  Eep.  263. 

5  Eeg.  v.  Barton,  3  Cox,  C.  C.  275;  Cole's  Trial,  7  Abb.  Pr.  X  S.  321; 
United  States  v.  Faulkner,  35  Fed.  Eep.  730. 

Cunningham  y.  State,  56  Miss.  269,  21  Am.  Eep.  360;  Bovard  v.  State, 
30  Miss.  600;  Com.  y.  Eogers,  7  Met.  500,  41  Am.  Dec.  458;  Hart  v.  State, 
14  Xeb.  572;  Burgo  v.  State,  26  Xeb.  639;  Wright  y.  State,  4  Xeb.  407; 
People  y.  Sprague,  2  Park.  Crim.  Eep.  43;  People  y.  Kleim,  1  Edni.  SeL 
Cas.  13;  People  y.  Divine,  1  Edm.  Sel.  Cas.  594;  McFarland's  Trial,  8  Abb. 
Pr.  X.  S.  57;  King  y.  State,  9  Tex.  App.  515. 

•Kriel  y.  Com.  5  Bush,  362;  Clark  y.  Trail,  1  Met.  (Ky.)  35;  Com.  v. 
Mosler,  4  Pa.  264.  And  see  Anderson  y.  State,  43  Conn.  514,  21  Am.  Kep. 
669.     See  also  cases  cited  supra,  this  section. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  173 

many  of  the  states,  and  seems  to  be  gaining  ground.  Within  this 
doctrine  insanity  which  so  affects  the  mind  as  to  subvert  the  free- 
dom of  the  will  and  destroy  the  power  of  the  party  to  choose 
between  right  and  wrong-  relieves  him  from  criminal  responsibil- 
ity for  acts  done  under  the  influence  of  such  disease,  though  he  is 
able  to  perceive  the  difference  between  right  and  wrong ; *  and  a 
charge  in  a  criminal  action  in  which  insanity  is  interposed  as  a 
defense,  limiting  the  inquiry  to  the  condition  of  the  cogitative 
faculties  or  power  to  comprehend  by  the  understanding,  is  errone- 
ous, as  mental  disease  may  also  involve  the  will.2 

There  are  two  constituent  elements  of  legal  responsibility  for 
criminal  acts ;  first,  capacity  of  legal  discrimination,  and,  second, 
freedom  of  will.3  And  where  one  commits  a  crime  under  an  in- 
sane impulse  which  he  could  not  control,  the  act  being  produced 
by  mental  disease,  he  should  not  be  held  criminally  accountable,4 
the  test  of  criminal  responsibility  being  stated  in  such  cases  to  be, 
Was  the  person  capable  of  knowing  at  the  time  of  the  act  that  it 
was  a  wrongful  one,  and  had  he  the  power  or  control  over  his  will 
to  prevent  him  from  doing  it? 6 

1  Parsons  v.  State,  81  Ala.  577,  60  Am.  Rep.  193,  overruling  previous  Ala- 
bama cases  on  the  subject;  Bradley  v.  State,  31  Ind.  492;  Sawyer  v.  State, 
35  Ind.  8C;  Baldwin  v.  State,  12  Mo.  223;  State  v.  Hundley,  46  Mo.  414; 
State  v.  Kotovsky,  74  Mo.  247;  Com.  v.  Freth  ("Defense  of  Insanity"),  3 
Phila.  105;  Brown  v.  Com.  78  Pa.  122;  Sayres  v.  Com.  88  Pa.  291;  Davis  v. 
United  States,  165  U.  S.  373,  41  L.  ed.  750.  But  see  later  Missouri  cases 
cited  in  last  section. 

2  Bradley  v.  State,  31  Ind.  492. 

3  Parsons  v.  State,  81  Ala.  577,  60  Am.  Eep.  193;  Farrer  v.  State,  2  Ohio 
St.  54;  Nevling  v.  Com.  98  Pa.  323. 

4  Stevens  v.  State,  31  Ind.  485,  99  Am.  Dec.  634;  Grubb  v.  State,  117  Ind. 
277;  Sawyer  v.  State,  35  Ind.  80;  Com.  v.  Rogers,  7  Met.  500,  41  Am. 
Dec.  458;  State  v.  Pagels,  92  Mo.  300;  State  v.  Jones,  50  N.  H.  369,  9  Am. 
Rep.  242;  State  v.  Bartlett,  43  N.  H.  224,  80  Am.  Dec.  154;  State  v.  Pike, 
49  N.  H.  399,  6  Am.  Rep.  533;  Com.  v.  Freeth,  5  Pa.  L.  J.  445;  United 
States  v.  Hewson,  7  Law  Rep.  361. 

5  Parsons  v.  State,  81  Ala.  577,  60  Am.  Rep.  195;  Williams  v.  State,  50 
Ark.  517;  State  v.  ReideU,  9  Houst.  470;  State  v.  Windsor,  5  Harr.  (Del.) 
515;  State  v.  Brown,  1  Houst.  Crim.  Cas.  539;  State  v.  West,  1  Houst.  Crim. 
Cas.  371;  Hornish  v.  People,  142  HI.  620,  18  L.  R.  A.  237;  Blake  v.  State, 
121  Ind.  433,  16  Am.  St.  Rep.  408;  Walker  v.  State,  102  Ind.  502;  Farris 
v.  Com.  (Ky.)  1  S.  W.  729;  Montgomery  v.  Com.  88  Ky.  509;  Shannahan  v. 
Com.  8  Bush,  464,  8  Am.  Rep.  465;  Kriel  v.  Com.  5  Bush,  363;  Graham  v. 


174:  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

An  exception  to  the  general  rule  of  criminal  responsibility 
where  one  has  sufficient  reason  to  distinguish  between  right  and 
wrong  as  to  the  particular  act  to  be  committed  exists  where,  in 
consequence  of  some  delusion,  the  will  is  overmastered  and  there 
is  no  criminal  intent,1  and  a  person  is  criminally  irresponsible 
where,  by  reason  of  insanity,  he  is  not  capable  of  knowing  that 
he  is  doing  wrong,  or  where  he  has  not  power  to  resist  tempta- 
tion to  violate  the  law,2  and  has  not  knowledge  and  understanding 
of  the  character  and  consequences  of  his  act.3  To  be  criminally 
responsible  a  man  must  have  reason  enough  to  be  able  to  judge 
of  the  character  and  consequences  of  the  act  committed,  and  he 
must  not  have  been  overcome  by  an  irresistible  impulse  arising 
from  disease.4 

The  power  to  deliberate,  premeditate,  and  design,  in  the 
absence  of  power  to  determine  properly  the  true  nature  and 
character  of  the  act,  its  effect  upon  the  subject,  and  the  true  re- 
sponsibility for  the  occasion,  and  the  power  to  control  the  im- 
pulses of  the  mind  and  prevent  the  execution  of  the  thought  that 
possesses  it,  is  not  a  true  test  of  criminal  responsibility.5  One  is 
criminally  responsible,  however,  where  he  had  sufficient  intelli- 
gence to  know  what  he  was  doing,  and  will  power  to  do  or  not  to 
do  the  criminal  act,  though  he  may  have  been  deranged ; 6  and 

Com.  16  B.  Mon.  587;  Smith  v.  Com.  1  Duv.  224;  Burgo  v.  State,  26  Neb. 
369;  State  v.  Hansen,  25  Or.  391;  Clark  v.  State,  12  Ohio,  483,  40  Am. 
Dec.  481;  Blackburn  v.  State,  23  Ohio  St.  146;  State  v.  Kalb,  2  Ohio  Leg. 
News,  364;  Com.  v.  HaskeU,  Phila.  Leg.  Int.  (Dec.  4,  1868);  Com.  v.  Winne- 
more,  1  Brewst.  356;  Hall  v.  Com.  22  W.  N.  C.  25;  Com.  v.  Piatt,  11  Phila. 
421. 

1  Roberts  v.  State,  3  Ga.  310.  But  see  subsequent  Georgia  cases  cited 
supra  in  last  above  section. 

2  People  v.  Finley,  38  Mich.  482;  Parsons  v.  State,  81  Ala.  577,  60  Am. 
Bep.  193;  Smith  v.  Com.  1  Duv.  224;  State  v.  Mewherter,  46  Iowa,  88; 
State  v.  Felter,  25  Iowa,  67. 

3  State  v.  Mewherter,  46  Iowa,  88;  State  v.  Felter,  25  Iowa,  67. 

4  State  v.  Johnson,  40  Conn.  136;  State  v.  West,  1  Houst.  Crim.  Cas.  371; 
Conway  v.  State,  118  Ind.  482. 

6  Bennett  v.  State,  57  Wis.  69,  46  Am.  Bep.  26;  Kearney  v.  People,  11 
Colo.  258;  Stevens  v.  State,  31  Ind.  485,  99  Am.  Dec.  634. 

6  State  v.  Windsor,  5  Harr.  (Del.)  512;  Dunn  v.  People,  109  HI.  635; 
Grubb  v.  State,  117  Ind.  277;  Goodwin  v.  State,  96  Ind.  550;  Fouts  v. 
State,  4  G.  Greene,  500;  State  v.  Jones,  50  N.  H.  362,  9  Am.  Rep.  242; 


LEGAL    ADJUDICATIONS    IN    CRIMINAL   CASES.  175 

irresistible  impulse  caused  by  anger  or  resentment,  though  un- 
controllable, will  not  excuse  crime  where  the  person  committing 
it  was  otherwise  sane.1  Nor  will  mere  moral  obliquity  of  percep- 
tion protect  a  person  from  punishment  for  a  deliberate  criminal 
act,2  or  a  mere  perversion  of  the  affections.3 

An  uncontrollable  propensity  which  will  relieve  from  criminal 
responsibility  must  have  its  origin  solely  in  a  diseased  or  insane 
mind.4  And  moral  insanity  not  being  of  common  occurrence, 
evidence  of  its  existence  and  operation  cannot  be  tested  by  the 
general  rule  applicable  to  the  common  and  usual  forms  of  insan- 
ity and  is  to  be  received  and  passed  upon  with  caution ; 6  and  the 
utmost  care  should  be  taken  by  the  court  in  presenting  to  the 
jury  the  legal  principles  relating  to  it.6  The  doctrine  which 
recognizes  a  mania  consisting  of  an  insane  influence  pressing  on 
the  mind  and  drawing  it  to  consequences  which  it  sees  but  can- 
not avoid,  is  dangerous  in  its  relations,  and  can  be  recognized 
only  in  the  clearest  cases,  and  the  disturbance  ought  to  be  shown 
to  have  been  habitual,  or  at  least  to  have  evinced  itself  in  more 
than  a  single  instance ; 7  though  an  instruction  that  the  jury 
ought  not  to  acquit  upon  the  ground  of  moral  insanity  unless  it 
had  manifested  itself  in  former  acts  of  a  similar  character,  is  mis- 
leading and  erroneous.8  And  moral  insanity  ought  never  to  be 
admitted  as  a  defense  in  a  prosecution  for  crime,  unless  it  is 

Hall  v.  Com.  22  W.  N.  C.  25;  Leache  v.  State,  22  Tex.  App.  279,  58 
Am.  Eep.  638;  Com.  v.  Jones,  1  Leigh,  612;  Wilcox  v.  State,  94  Tenn.  106. 

1  Boiling  v.  State,  54  Ark.  588;  Smith  v.  State,  55  Ark.  259;  Williams  v. 
State,  50  Ark.  517;  Blake  v.  State,  121  Ind.  433,  16  Am.  St.  Eep.  408;  Good- 
win v.  State,  96  Ind.  550;  Sanders  v.  State,  94  Ind.  147;  Guetig  v.  State,  66 
Ind.  94,  32  Am.  Eep.  99;  State  v.  Felter,  25  Iowa,  67;  State  v.  Mewher- 
ter,  46  Iowa,  88:  State  v.  Stickley,  41  Iowa,  232;  Fitzpatrick  v.  Com.  81 
Ky.  357;  People  v.  Durfee,  62  Mich.  487;  People  v.  Finley,  38  Mich. 
482;  People  v.  Mortimer,  48  Mich.  37;  Com.  v.  Freeth,  5  Pa.  L.  J.  445; 
Brown  v.  Com.  78  Pa.  122;  Say  res  v.  Com.  88  Pa.  291. 

2  Taylor  v.  Com.  109  Pa.  262. 

1  Goodwin  v.  State,  96  Ind.  550. 

4  State  v.  Mewherter,  46  Iowa,  88;  Bos  well  v.  State,  63  Ala.  307,  35  Am. 
Eep.  20;  Leache  v.  State,  22  Tex.  App.  279,  58  Am.  Eep.  638. 
6  Com.  v.  Mosler,  4  Pa.  264. 

*  Scott  v.  Com.  4  Met.  (Ky.)  227,  83  Am.  Dec.  461. 
'  Coyle  v.  Com.  100  Pa.  573,  45  Am.  Eep.  397. 
8  Scott  v.  Com.  4  Met.  (Ky.)  227,  83  Am.  Dec.  461. 


176  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

shown  that  the  propensity  existed  in  such  violence  as  to  subject 
the  intellect,  control  the  will,  and  render  it  impossible  for  the 
party  to  do  otherwise  than  yield,1  by  overriding  the  reason  and 
judgment  and  obliterating  the  sense  of  right  and  wrong  as  to  the 
particular  act  done,  and  depriving  the  party  of  the  power  to 
choose  between  them.2 

So,  an  instruction  giving  the  right  and  wrong  test  of  criminal 
responsibility  is  not  erroneous  when  it  does  not  forbid  the  jury 
to  consider  the  question  whether  the  accused  was  capable  of  self- 
control  and  of  choosing  the  right  instead  of  the  wrong.3  And  it 
is  proper  to  refuse  to  instruct  that  if  at  the  time  of  committing  a 
crime  the  accused  was  moved  thereto  by  an  insane  impulse  con- 
trolling his  will  and  judgment,  which  was  too  powerful  for  him 
to  resist,  not  arising  from  voluntary  causes  or  induced  by 
himself,  he  cannot  be  found  guilty,  as  it  is  a  question  of  fact  and 
not  of  law,4  and  refusal  to  instruct  as  to  moral  insanity  or  irre- 
sistible impulse,  is  not  error  where  the  tendency  of  the  evidence 
is  to  support  a  wholly  different  theory,  and  there  is  no  evidence 
tending  to  show  incapacity  to  act  upon  the  knowledge  that  the 
deed  was  wrong ; 5  nor  should  such  an  instruction  be  so  framed  as 
to  create  the  impression  that  this  form  of  insanity  was  the  sole 
object  of  the  inquiry,  where  the  tendency  of  the  evidence  is  to 
show  latent  hereditary  insanity  developed  into  active  existence 
by  a  shock.8 

1  Scott  v.  Com.  4  Met.  (Ey.)  227,  83  Am.  Dec.  461;  Fisher  v.  People,  23 
HI.  283;  State  v.  Mewherter,  46  Ewa,  88;  Wright  v.  People,  4  Neb.  407; 
Com.  v.  "Werling,  164  Pa.  559;  Taylor  v.  Com.  109  Pa.  262;  Ortwein  v. 
Com.  76  Pa.  414,  18  Am.  Rep.  420;  Com.  v.  hosier,  4  Pa.  264. 

8  Meyer  v.  People,  156  El.  126;  Lilly  v.  People,  148  m.  467;  Dacey  v. 
People,  116  ILL  555;  Dunn  v.  People,  109  El.  635;  Hopps  v.  People,  31 
EL  385;  Leache  v.  State,  22  Tex.  App.  279,  58  Am.  Eep.  638;  King  v. 
State,  9  Tex.  App.  515. 

3  Farrer  v.  State,  2  Ohio  St.  54. 

4  Grubb  v.  State,  117  Ind.  277. 

6  United  States  v.  Guiteau,  1  Mackey,  498,  47  Am.  Eep.  247.  And  see 
Clark  v.  Trail,  1  Met.  (Ky.)  35. 

6  Dejarnette  v.  Com.  75  Ya.  867. 
For  Dr.  Clevenger's  discussion  on  this  subject,  see   Uncontrollable 
Propensity,  Irresistible  Impulse,  Obsessions,  Will  Power,  Intent,  Per- 
verted Affections,  Moral  Insanity,  Self-Control,  Heredity. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  177 

§  8.  Kleptomania. 

Kleptomania  is  defined  to  be  a  species  of  mania  consisting  of 
•an  irresistible  propensity  to  steal.1  When  this  species  of  insanity 
is  clearly  established  it  will  render  its  subject  irresponsible  for 
theft.3  And  an  instruction  in  a  prosecution  for  larceny  in  which 
the  defense  is  kleptomania,  on  the  general  subject  of  insanity,  is 
defective  in  failing  to  define  its  peculiar  symptoms  as  relating  to 
the  general  subject.3  But  a  conviction  for  larceny  will  not  be 
set  aside  as  against  the  weight  of  evidence  where  the  defense  is 
kleptomania,  except  in  an  extreme  case,4  and  it  makes  no  differ- 
ence as  to  the  guilt  of  the  person  committing  the  larceny  what 
•sort  of  an  impulse  controlled  him  or  how  strong  it  was  or  what 
produced  it,  where  it  does  not  appear  to  be  a  case  of  klepto- 
mania.6 

§  9.  Erotomania. 

Erotomania  is  defined  to  be  a  morbid  sexual  propensity. 
"When  interposed  as  a  defense  in  a  criminal  prosecution  it  is  gov- 
erned by  the  rule  applicable  to  general  or  partial  insanity,  that  it 
excuses  crime  only  when  it  deprives  the  party  of  reason  with 
regard  to  the  act  in  question,  and  evidence  in  a  prosecution  for 
homicide  that  the  accused  was  afflicted  with  erotomania  is  not 
admissible,  as  there  is  no  connection  between  that  species  of 
mania  and  that  which  leads  to  homicide.6 

III.   Temporary  and  recurrent  insanity. 

Temporary  insanity  may  be  defined  to  consist  of  occasional  fits 
-of  madness,7  and   recurrent  insanity  is  insanity  returning  from 

1  Black's  Law  Dictionary. 

2  Harris  v.  State,  18  Tex.  App.  287. 

3  Looney  v.  State,  10  Tex.  App.  520,  38  Am.  Eep.  646. 
*  Com.  v.  Fritch,  9  Pa.  Co.  Ct.  164. 

5  Henslie  v.  State,  3  Heisk.  202. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Larceny,  Klepto- 
mania, chap.  VI. 

6  State  v.  Simms,  71  Mo.  538. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Erotomania,  Sat- 
yriasis, Nymphomania,  Sexual  Offenses,  chap.  VI. 

7  See  Eeg.  v.  Eichards,  1  Fost.  &  F.  87. 

12 


178 


MEDICAL   JURISPRUDENCE    OF    INSANITY. 


time  to  time.1  They  are  not  a  defense  in  a  criminal  prosecution,, 
where  the  person  committing  the  crime  was  not  afflicted  with  the- 
malady  at  the  time.2  And  where  the  crime  was  committed  during 
a  lucid  interval,  though  he  is  generally  insane,  he  is  responsible 
therefor  if  he  was  capable  of  distinguishing  good  from  evil.3 
Where  partial  insanity  is  interposed  as  a  defense  to  a  criminal 
act  it  must  be  proved  that  the  act  was  committed  during  an 
attack  of  the  disease,  to  justify  an  acquittal,  and  the  act  itself 
cannot  be  taken  as  evidence  of  such  an  attack  of  the  disease  ;4 
and  it  is  a  question  for  the  jury  to  determine  whether  or  not  the; 
criminal  act  was  done  during  a  fit  of  madness.5 

IV.   Existence  of  insanity — how  determined. 

The  question  as  to  how  much  intellect,  understanding,  judg- 
ment, and  comprehension  one  must  have  to  make  him  amenable 
to  the  law  with  respect  to  a  criminal  act  is  one  of  law  for  the 
court.6  But  the  question  of  the  existence  of  insanity  which  will 
excuse  crime  where  the  commission  of  the  criminal  act  is  estab- 
lished is  one  of  fact  for  the  jury7  under  proper  instructions,8  to 
be  submitted  to  and  determined  by  it  like  any  other  fact  in  the 
case.9  All  symptoms  of  delusions  or  mental  disease  are  purely 
matters  of  fact  for  the  jury,10  and  the  weight  and  sufficiency  of 

'  Smith  v.  State,  22  Tex.  App.  316. 

8  Bellingkain's  Case,  1  Collinson,  Lunacy,  636.  , 

3  Clark's  Case,  1  City  Hall  Kec.  176. 

4  People  v.  Pine,  2  Barb.  566. 

6  Beg.  v.  Bichards,  1  Fost.  &  F.  87. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Temporary  Insani- 
ty, Emotional  Insanity,  Transitory  Frenzy,  Hecurrent  Insanity,  lucid 
Interval,  Partial  Insanity. 

6  People  v.  Waltz,  50  How.  Pr.  204  ;  People  v.  Holmes  (Mich.)  69  N.  W. 
501. 

'  Jamison  v.  People,  145  HI.  357 ;  Hornish  v.  People,  142  HI.  620,  18  L. 
B.  A.  237 ;  Plake  v.  State,  121  Ind.  433,  16  Am.  St.  Bep.  408 ;  State  v. 
Klinger,  43  Mo.  127  ;  State  v.  Holme,  54  Mo.  153  ;  State  v.  Pike,  49  N.  H. 
399,  6  Am.  Bep.  533  ;  People  v.  Pine,  2  Barb.  566  ;  State  v.  Stark,  1 
Strobh.  L.  479 ;  Clark  v.  State,  8  Tex.  App:  350 ;  Beasley  v.  State,  50- 
Ala.  149,  20  Am.  Bep.  292  ;  Bowler's  Case,  1  Collinson,  Lunacy,  673. 

8  People  v.  Pine,  2  Barb.  566. 

9  State  v.  Holme,  54  Mo.  153. 

10  State  v.  Hundley,  46  Mo.  414. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  179 

evidence  to  establish  the  defense  of  insanity  are  questions  exclu- 
sively for  the  jury.1  And  where  insanity  is  interposed  as  a  de- 
fense in  a  prosecution  for  homicide  it  is  always  left  to  the  jury  to 
determine  whether  the  mental  condition  of  the  accused  was  such 
that  he  was  capable  of  a  specific  intent  to  take  life.*  These  rules 
apply  to  temporary  or  periodical  insanity,3  and  it  is  a  question 
for  the  jury  whether  the  accused  labored  under  the  influence  of 
a  delusion  which  rendered  his  mind  insensible  of  the  nature  of  his 
act,4  as  is  also  the  question  of  the  existence  and  the  effect  on  the 
mind  of  insanity  which  subverts  the  freedom  of  the  will  and  de- 
stroys the  power  of  the  victim  to  choose  between  right  and 
wrong,  though  he  may  be  able  to  perceive  the  difference  between 
them.6  And  where  insanity  is  alleged  as  a  defense  in  a  prosecu- 
tion for  homicide,  the  question  as  to  whether  the  accused  was 
guilty  of  murder  in  the  first  or  second  degree  should  be  submit- 
ted to  the  jury,  as  well  as  the  question  whether  or  not  he  was 
insane.6  But  an  instruction  that  if  the  accused  was  insane  the 
verdict  should  be  "not  guilty,"  but  if  sane  he  is  guilty  of  a  crimi- 
nal homicide,  and  that  it  is  for  the  jury  to  determine  the  degree 
of  guilt,  is  erroneous  as  a  usurpation  of  the  province  of  the  jury, 
which  is  to  decide  whether  the  act  was  criminal,  even  though  he 
were  not  insane  at  the  time.7  So,  the  submission  of  the  issue  of 
sanity  or  insanity  to  the  jury  is  not  error  where  there  is  evidence 
on  that  question,8  and  it  is  to  be  passed  upon  by  the  jury  whether 
the  accused  has  introduced  evidence  upon  the  subject  or  not,  and 
they  must  consider,  not  only  the  evidence  directed  specifically  to 
that  question,  but  also  all  circumstances  developed  by  the  evi- 
dence bearing  upon  it.9     And  a  verdict  or  finding  will  not  be  set 

1  Brown  v.  Com.  14  Bush,  398. 

2  United  States  v.  King,  34  Fed.   Eep.  302  ;  Dejarnette  v.  Com.  75  Va. 
867. 

a  Cunningham  v.  State,  56  Miss.  269,  21  Am.  Eep.  360 ;  Eeg.  v.  Rich- 
ards, 1  Fost.  &  F.  87. 

4  Bowler's  Case,  1  Collinson,  Lunacy,  673  ;  Grubb  v.  State,  117  Ind.  277. 

5  Parsons  v.  State,  81  Ala.  577,  60  Am.  Eep.  193 ;  State  v.  Jones,  50  N. 
H.  369,  9  Am.  Eep.  242. 

6  People  v.  Walter,  1  Idaho,  386.     And  see  People  v.  Webster,  59  Hun, 
389. 

'  People  v.  Webster,  59  Hun,  398. 

8  Crews  v.  State,  34  Tex.  Crim.  Eep.  533. 

9  McDougal  v.  State,  88  Ind.  24. 


180  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

aside  or  disturbed  where  the  evidence  as  to  insanity  is  conflict- 
ing,1 or  where  there  is  room  for  a  difference  of  opinion  as  to  the 
sanity  of  the  accused  under  the  evidence  and  instructions,2  or 
unless  the  court  is  clearly  satisfied  that  it  was  erroneous  and  un- 
just.3 The  insanity  of  a  person  accused  of  crime  who  pleads 
guilty,  however,  is  an  issue  for  the  court,  and  is  required  to  be 
shown  before  his  conviction  can  be  had,  and  evidence  as  to  his 
insanity  should  be  introduced  at  the  time  of  making  the  plea.4 
It  is  the  duty  of  the  jurors  to  carefully  consider  and  weigh  the 
evidence  upon  the  subject  of  insanity  and  give  it  the  weight  and 
credit  which  their  judgment  and  conscience  deem  it  entitled  to 
receive.6  And  it  is  not  improper  for  the  court  to  tell  the  jury 
that  the  defense  of  insanity  should  be  examined  with  caution.1' 
But  the  instruction  as  to  what  constitutes  insanity  should  not  be 
argumentative  or  such  as  to  lead  the  jury  to  believe  that  the  de- 
fense of  insanity  was  not  worthy  of  consideration.7 

V.  Proof  necessary  to  establish  insanity. 

§  1.   Generally. 

To  convict  in  a  criminal  prosecution  the  evidence  must  show 
that  the  accused  at  the  time  of  the  commission  of  the  crime  pos- 
sessed that  self-determining  power  which  in  a  sane  mind  renders 
it  conscious  of  the  nature  of  its  own  purpose  and  capable  of  re- 
sisting wrong  desires.8  But  positive  and  direct  testimony  is  not 
required  to  establish  insanity  as  a  defense,0  nor  is  proof  of  specific 

1  Jamison  v.  People,  145  HI.  357 ;  Boren  v.  State,  32  Tex.  Crim.  Eep. 
637 ;  People,  Clough,  v.  Levy,  71  Cal.  618 ;  Elder  v.  State  (Ga.)  26 
S.  E.  80  ;  State  v.  Dreher  (Mo.)  38  S.  W.  567. 

2  Williams  v.  State,  50  Ark.  511. 

s  Hornish  v.  People,  142  111.  620,  18  L.  E.  A.  237. 

4  Burton  v.  State,  33  Tex.  Crim.  Eep.  138. 

6  Goodwin  v.  State,  96  Ind.  550  ;  State  v.  Scott,  49  La.  Ann.  253 

o  People  v.  Eloss  (Cal.)  47  Pac.  459  ;  People  v.  McCarthy  (Ca  .)  46  Pac. 
1073 ;  People  v.  Bumberger,  45  Cal.  650 ;  People  v.  Pico,  62  Cal.  50  ; 
Sanders  v.  State,  94  Ind.  147 ;  People  v.  Degraff,  1  Wheeler,  Crim.  Cas. 
203. 

'People  v.  Holmes  (Mich.)  69  N.  W.  501;  Aszman  v.  State,  123  Ind. 
847,  8  L.  E.  A.  33. 

8  Nevling  v.  Com.  98  Pa.  326  ;  Hall  v.  Com.  22  W.  N.  C.  25. 

9  State  v.  Wright  (Mo.)  35  S.  W.  1145  ;  St-ite  v.  Simms,  68  Mo.  305. 


LEGAL   ADJUDICATIONS    IN    CRIMINAL   CASES.  181 

acts  of  derangement  where  the  jury  finds  from  all  the  evidence 
of  the  case  that  the  party  is  insane ;'  and  a  person  accused  of 
crime  may  be  acquitted  on  the  ground  of  insanity  though  he  ob- 
jected to  that  defense  and  asserted  that  he  was  not  insane  and 
called  witnesses  to  prove  his  sanity,  where  the  whole  evidence 
justifies  such  an  acquittal.2  The  testimony  of  the  accused  him- 
self, however,  that  he  did  not  know  that  the  act  was  wrong  and 
criminal  does  not  tend  to  prove  idiocy  or  lunacy,  or  that  he  was 
laboring  under  such  a  defect  of  reason  as  not  to  know  the  nature 
and  quality  of  the  act  ;3  and  refusal  to  instruct  with  reference  to 
insanity  is  justifiable  where  the  only  testimony  bearing  upon  the 
question  is  that  of  the  defendant  herself,  and  she  testifies  to  a 
state  of  facts  inconsistent  with  such  a  conclusion.4 

§  2.  Previous  and  subsequent  insanity. 

As  a  general  rule  insanity  at  the  very  instant  of  the  commis- 
sion of  a  crime  can  only  be  established  by  evidence  tending  to 
prove  that  the  party  was  insane  at  some  period  either  before  or 
afterwards,5  and  such  evidence  is  to  be  considered  and  weighed 
in  connection  with  acts  of  the  party  tending  to  establish  the  fact.6 
Thus,  a  conviction  should  be  reversed  where  there  is  a  mass  of 
credible  testimony  showing  the  insanity  of  the  accused  at  the 
time  of  and  preceding  the  offense,  where  the  state  offered  no  evi- 
dence whatever  relating  to  his  condition  during  that  time.7  And 
a  minute  recollection  on  the  part  of  the  accused  of  the  circum- 
stances and  details  of  the  crime  a  long  time  afterwards  is  strong 
evidence  of  his  sanity  at  the  time.8  So,  reference  in  an  instruc- 
tion to  the  mental  condition  of  the  defendant  at  the  date  named 

1  People  v.  Tripler,  1  Wheeler,  Crim.  Cas.  48. 

2  Keg.  v.  Pearce,  9  Car.  &  P.  667  ;  State  v.  Eeidell,  9  Houst.  470. 

3  State  v.  Kluseman,  53  Minn.  541. 

4  Perry  v.  State,  87  Ala.  30  ;  Knight  v.  Young,  2  Ves.  &  B.  184. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Evidence,  Testimony^ 
Knowledge  of  Nature  of  Act,  chap.  VX 
6  People  v.  March,  6  Cal.  543. 

6  Murphy  v.  Com.  92  Ky.  485 ;  Montgomery  v.  Com.  88  Ky.  509 ;  Peo- 
ple v.  Clendennin,  91  Cal.  35. 

7  Armstrong  v.  State,  30  Fla.  170,  17  L.  E.  A.  484. 

8  Pinoevi's  Case,  5  City  Hall  Rec.  123  ;  Trial  of  Ferrers,  19  How.  St.  Tr. 
947. 


182  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

in  the  indictment,  where  all  the  evidence  is  directed  to  another 
and  later  date,  is  not  reversible  error  as  tending  to  mislead  the  jury.1 
And  an  affidavit  for  continuance  on  the  ground  of  absent  wit- 
nesses to  prove  the  insanity  of  the  accused  should  be  clear  as  to 
his  conduct  for  a  considerable  time  before  the  crime  up  to  a 
recent  period,  so  as  to  negative  the  idea  that  he  was  of  sound 
mind  at  that  time.2 

But  proof  of  independent  acts  or  circumstances  subsequent 
to  the  commission  of  the  crime  does  not  establish  insanity  at 
the  time  of  its  commission.3  And  the  insanity  of  the  accused 
cannot  be  proved  by  subsequent  conversations  with  him,  and 
evidence  of  the  test  applied  during  the  interval  to  test  his 
sanity  cannot  be  given.4  And  to  justify  a  reversal  on  the 
ground  of  the  exclusion  of  evidence  of  subsequent  acts  it  must 
appear  that  they  had  some  special  significance  indicating  mental 
disease.5  Kor  will  a  new  trial  be  ordered  on  the  ground  that  the 
verdict  was  against  evidence,  where  there  was  scarcely  a  shadow 
of  testimony  tending  to  show  insanity  up  to  the  time  of  the 
offense,  upon  evidence  as  to  the  conduct  of  the  accused  after  con- 
finement, where  it  appeared  by  the  testimony  of  intimate  ac- 
quaintances that  he  was  a  man  of  ordinary  intelligence.6  But 
the  opinions  of  medical  men  who  had  seen  the  accused  subse- 
quent to  the  commission  of  the  act,  that  his  insanity  was  chronic, 
and  therefore  that  he  was  insane  at  the  time  of  the  act,  justifies 
the  submission  of  the  case  to  the  jury,  though  all  the  circum- 
stances showed  premeditation,  preparation,  and  design,  and  con- 
sciousness that  he  had  violated  the  law.7  On  appeal  from  a  judg- 
ment of  conviction,  however,  the  court  cannot  act  upon  evidence 
furnished  by  the  present  condition  of  the  defendant,  whose  in- 
sanity had  increased  and  developed  since  the  trial,  and  upon  that 
ground  reverse  a  judgment  otherwise  legal.8 

1  Colee  v.  State,  75  Ind.  513. 

2  Bellinghani's  Case,  1  Collinson,  Lunacy,  638. 

3  Murphy  v.  Com.  92  Ey.  485. 

4  Choice  V.  State,  31  Ga'  424. 

5  State  v.  Le^ris,  20  Xev.  333. 

6  Fhelps  v.  Com.  17  Ky.  L.  Eep.  708. 
:  Eeg.  t.  Souther,  4  Fost.  &  F.  834. 

s  People  v.  Schmitt,  106  Cal.  48. 

For  comments  on  this  subject  by  Dr.  Clevengc;*,  see  Remissions,  Recur- 
rent Insanity,  Lucid  Interval,  Premeditation,  Design,  JPlannii\r/. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  183 

§  3.  Nature  of  the  crime. 

The  atrocity  or  terrible  nature  of  the  criminal  act  is  not  evi- 
dence of  the  insanity  of  the  perpetrator.1  Nor  is  the  barbarity 
with  which  the  act  is  committed,2  nor  the  fact  that  it  was  of  an 
unnatural  character,3  nor  is  the  enormity  of  the  crime;4  and 
refusal  to  instruct  as  to  insanity  is  not  error  where  there  is  noth- 
ing to  suggest  doubt  as  to  sanity  except  the  enormity  of  the 
crime.5  Nor  can  insanity  be  inferred  merely  from  the  oddness  of 
the  deed  or  the  daring  manner  in  which  it  was  committed,8 
though  the  enormity  of  the  crime  may  be  considered  with  other 
evidence  in  determining  whether  or  not  the  accused  was  sane.7 
So,  an  act  of  homicide  cannot  be  i*egarded  as  proof  in  itself  of 
insanity,  but  it  is  proper  to  examine  the  act  with  all  its  attend- 
ing circumstances,  to  determine  whether  it  is  most  consistent 
with  real  or  feigned  insanity.8 

§  4.  Motive. 

Mere  want  of  motive  in  the  commission  of  a  crime  is  not  of 
itself  sufficient  to  establish  insanity,9  and  a  verdict  of  guilty  will 
not  be  disturbed  on  appeal  where  the  mind  of  the  accused  was 
not  so  diseased  that  he  did  not  know  right  from  wrong  and  the 
consequences  of  his  own  act,  though  there  was  little  or  no  prov- 
ocation.10 But  the  presence  or  absence  of  a  motive  may  be  con- 
sidered with  other  evidence  in  determining  whether  or  not  the 

1  Laros  v.  Com.  84  Pa.  200  ;  State  v.  Coleman,  20  S.  C.  441. 

2  State  v.  Stark,  1  Strobh.  L.  479  ;  United  States  v.  Lee,  4  Mackey,  489, 
54  Am.  Rep.  293. 

3  HaU's  Case,  2  City  Hall  Kec.  85  ;  Laros  v.  Com.  84  Pa.  200. 

4  Com.  v.  Buccieri,  153  Pa.  535 ;  Com.  v.  Mosler,  4  Pa.  264. 

5  Singleton  v.  State,  71  Miss.  782. 

6  Com.  v.  Farkin,  2  Pa.  L.  J.  475. 

7  Com.  v.  Buccieri,  153  Pa.  535. 

8  People  v.  Lake,  2  Park.  Crim.  Eep.  215  ;  Beasley  v.  State,  50  Ala.  149, 
20  Am.  Rep.  292. 

See  Testamentary  Capacity  or  Insanity  Inferred  from  Nature  of  a 
Will.  The  application  might  sometimes  be  made  to  nature  of  acts  in  crim- 
inal cases.     Also  Nature  of  Act.     S.  V.  C. 

9  Com.  v.  Mosler,  4  Pa.  264 ;  Carter  v.  State,  12  Tex.  500,  62  Am.  Dec. 
.539  ;  Beg.  v.  Dixon,  11  Cox,  C.  C.  341. 

10  State  v.  Schaefer,  116  Mo.  96. 


1S4  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

accused  was  sane,1  and  where  no  motive  for  the  crime  is  estab- 
lished it  is  an  important  consideration  upon  the  issue  of  insanity,8 
and  the  commission  of  a  homicide  without  motive,  which  is  un- 
natural and  extraordinary,  is  of  itself  sufficient  evidence  of  insan- 
itj  to  authorize  the  admission  of  testimony  to  show  the  insanity 
of  the  parents  of  the  accused.3  2s  or  will  a  conviction  be  set  aside 
on  the  ground  of  insanity  of  the  accused  where  the  question  of 
insanity  was  fully  submitted  and  motives  for  the  deed  were 
clearly  shown.4  It  is  the  duty  of  the  jury  to  determine  from  the 
evidence,  where  insanity  is  relied  upon,  whether  the  accused 
committed  the  act  under  or  in  the  absence  of  such  motives  as 
would  naturally  influence  the  mind  of  a  depraved  man  to  acts  of 
violence,  and  if  he  committed  the  act  under  the  influence  of 
anger,  jealousy,  or  hate,  that  circumstance  would  add  great 
strength  to  the  proof  of  his  sanity;  and  if  actual  insanity  is  not 
made  out  the  jury  may  infer  revenge  or  passion,  and  not  insan- 
ity.6 But  an  instruction  that  the  jury  is  not  warranted  in  infer- 
ring insanity  from  the  mere  fact  of  the  commission  of  the  crime, 
or  from  its  enormity,  or  from  an  apparent  absence  of  adequate 
motive,  as  the  law  presumes  that  it  was  prompted  by  malice,  is 
erroneous  as  an  instruction  upon  the  weight  of  evidence,  under  a. 
statute  prohibiting  such  instruction.6 

§  5.  Acts  and  conduct. 

Insanity  may  be  proved  by  showing  acts,  declarations,  and  con- 
duct evidencing  an  aberration  of  the  mind  ;7  and  the  conduct, 
declarations,  and  acts  of  the  accused,  and  any  change  therein,  and 
its  extent  and  cause,  and  all  other  such  circumstances  exhibited  at 
or  about  the  date  of  the  crime  and  previous  thereto,  are  to  be 
considered,  and  are  entitled  to  more  or  less  weight  according  to- 

1  Com.  v.  Buccieri,  153  Pa.  535. 
8  People  v.  Barber,  115  N.  T.  475. 

3  Murphy  v.  Cora.  92  Ey.  485. 

4  Shaw  v.  State,  32  Tex.  Crira.  Bep.  155. 
People  v.  Messersraitli,  61  Cal.  246. 

6  Kearney  v.  State,  68  Miss.  233. 

For  Dr.    Clevenger's  discussion  on  this  subject,   see  Motive,  Anger,. 
Hatred,  Revenge,  Jealously,  Malice. 
•  State  t.  Brinyea,  5  Ala.  241. 


LEGAL   ADJUDICATIONS   IN   CRIMINAL   CASES.  185 

their  nature  and  their  nearness  to  the  act  in  question.1  The  fact 
that  a  person  is  unable  to  discriminate  between  right  and  wrong 
is  best  ascertained,  not  by  any  medical  theory,  but  by  such  acts 
and  conduct  of  the  individual  himself,2  and  is  of  more  value  than 
the  opinions  of  witnesses,  however  learned  or  experienced  they 
may  be.2  And  a  man's  general  habits  constitute  better  evidence 
than  his  particular  acts.4  Thus,  evidence  that  the  mind  of  the 
accused  had  undergone  a  marked  change,  that  he  had  become 
taciturn,  irritable,  and  unsocial,  absent-minded,  restless,  forgetful, 
and  partially  absorbed  in  thought,  avoiding  company  and  believ- 
ing himself  crazy,  and  that  he  killed  his  friend  and  employer 
without  apparent  reason,  and  made  no  effort  to  escape,  is  suffi- 
cient to  establish  his  insanity.5  And  insanity  is  established  by 
proof  of  the  killing  by  a  nurse  girl  of  her  employer's  children, 
of  whom  she  was  very  fond,  and  that  she  was  weakminded  and 
imbecile,  and  showed  no  fear,  anger,  shame,  grief,  or  hardihood 
or  consciousness  that  she  had  taken  human  life,  but  seemed  to  be 
studying  about  something.6  So,  the  fact  that  the  accused,  prior 
to  the  commission  of  the  act,  could  not  sleep  nights,  and  went 
instinctively  where  he  could  lean  against  a  bag  of  oats,  instead  of 
lying  down  to  sleep,  is  strong  evidence  of  insanity  where  he  prob- 
ably did  not  know  that  this  was  a  symptom,  and  was  not  feign- 
ing insanity.7  And  evidence  of  a  mania  for  stealing  ladies'  shoes 
without  any  apparent  object,  and  that  the  insanity  was  hereditary, 
and  that  the  accused  had  received  an  injury  to  his  head,  is  suffi- 
cient to  justify  an  acquittal  on  a  prosecution  for  robbing  a  lady 
of  her  shoe.8  The  concealment  of  a  theft,  however,  and  an  en- 
deavor to  escape,  and  a  judicious  use  of  the  property  stolen,  all 
tend  to  show  a  knowledge  of  the  nature  of  the  offense  and  an 

1  Cole's  Trial,  7  Abb.  Pr.  N.  S.  321. 

8  United  States  v.  Sliults,  6  McLean,  121. 

3  Smith  v.  Tiiomas,  1  Houst.  Crim.  Cas.  511. 

4  Snook  v.  Watts,  11  Beav.  105.     And  see  State  v.  Dreher  (Mo.)  38  S.  W. 

5  Massengale  v.  State,  24  Tex.  App.  181. 

6  Farrer  v.  State,  2  Ohio  St.  54. 

7  People  v.  Lake,  2  Park.  Crim.  Eep.  215. 

8  People  v.  Spragne,  2  Park.  Crim.  Eep.  49. 

Krafft-Ebing  describes  shoe-stealing  mania  as  a  form  of  sexual  perver- 
sion.    S.  V.  C. 


186  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

ability  to  discriminate  between  right  and  wrong.1  And  evidence 
of  repeated  efforts  to  procure  a  pistol,  and  searching  for  the  vic- 
tim and  shooting  him,  shows  criminal  responsibility.2  So,  that 
the  accused  became  restless  upon  learning  of  a  provocation  and 
moved  about  uneasily,  and  behaved  in  an  unusual  manner  and 
ate  little  at  dinner,  and  sat  in  ambush  to  shoot  and  kill  the 
offender,  do  not  furnish  the  slightest  proof  of  insanity."  And 
evidence  that  the  accused  previous  to  the  commission  of  the 
crime,  while  sitting  alone  sharpening  a  knife  on  a  stone,  rolled 
his  eyes  as  if  he  were  having  some  words  with  somebody,  is  not 
sufficient  to  sustain  the  defense  of  insanity.4  Xor  will  an  attempt 
to  commit  suicide,  though  it  may  be  considered  with  the  other 
facts  and  circumstances  as  bearing  upon  the  question.5  Nor  is 
evidence  that  the  accused  had  written  a  letter  in  blood,  and  had 
-strange  religious  notions,  and  had  a  wheel  studded  with  nails 
upon  which  he  prayed,  and  believed  that  he  had  discovered  per- 
petual motion,  and  behaved  in  an  eccentric  manner  and  caused  a 
commotion  in  church,  and  was  jealous  of  his  wife  and  believed 
that  his  life  was  threatened  by  her,  sufficient  to  show  insanity  as 
a  defense  to  a  criminal  charge.6  Xor  is  an  insane  delusion  that 
persons  about  the  accused  were  seeking  to  injure  him,  shown  by 
evidence  that  after  the  killing  he  warned  people  not  to  come 
near  him  and  said  he  had  to  defend  himself,  and  that  upon  being 
arrested  he  put  his  hand  to  his  hip  and  said  something  about  his 
revolver  and  wanted  to  get  a  butcher  knife  to  defend  hitaself 
with,  and  said  that  he  was  afraid  of  being  mobbed.7  So  the 
previous  conduct  of  the  family  of  the  person  committing  a  homi- 
cide is  to  be  considered  on  the  question  of  his  sanity,  and  evi- 
dence that  he  had  been  previously  totally  deranged,  and  that  a 

1  United  States  v.  Shults,  6  McLean,  121. 

But  such  matters  are  consistent  with  insanity,  also.     S.  Y.  C. 

2  State  v.  O'Neil,  51  Kan.  651,  24  L.  K.  A.  555. 

Insanity  is  consistent  with  designed  acts.     S.  Y.  C.     See  Epilepsy,  Trau- 
matic Insanity. 

B  Lacy  v.  State,  30  Tex.  App.  119. 
4  Ferris  v.  People,  35  N.  Y.  125. 
s  Coyle  v.  Com.  100  Pa.  573,  45  Am.  Kep.  337. 
6  Peg.  v.  McLeod,  2  Swin.  (Sc.)  88. 
■  People  v.  Slack,  90  Mich.  448. 
Delusions  of  jiersecution,  however,  are  common  in  insanity.     S.  Y.  0. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  187 

nurse  had  been  provided  to  take  care  of  him,  and  a  straight 
waist-coat  prepared  to  put  on  him,  would  be  of  considerable 
weight  to  establish  insanity.1 

§  6.  Personal  characteristics. 

The  temperament  and  disposition  of  a  person  accused  of 
crime,  and  any  change  therein,  and  the  extent  and  cause  of  such 
change,  are  entitled  to  consideration  on  the  question  of  his  san- 
ity, and  to  more  or  less  weight  according  to  their  nature.2  Thus, 
evidence  that  a  party  was  very  weak-minded  and  particularly 
deficient  in  memory  and  reason,  and  could  not  learn  anything, 
and  had  always  been  regarded  as  a  fool,  together  with  the  opin- 
ion of  witnesses  who  knew  him  that  he  did  not  know  right  from 
wrong,  is  sufficient  to  establish  criminal  irresponsibility.3  And 
spasmodic  possession  of  abnormal  muscular  strength  or  unnatural 
physical  power,  and  the  characteristic  of  great  wakefulness  and  a 
deranged  system  and  great  restlessness,  and  an  abnormal  bulging 
about  the  eye  with  a  dryness  about  it  and  a  peculiar  vacuous  ex- 
pression, are  all  evidence  of  insanity.4  But  mere  eccentricity 
does  not  show  insanity  which  will  operate  as  an  excuse  for  crime,6 
though  it  has  some  bearing  on  the  question.6  And  evidence  of 
a  great  amount  of  senseless  extravagance  and  absurd  eccentricity 
of  conduct,  coupled  with  habits  of  excessive  intemperance  caus- 
ing fits  and  delirium  tremens,  will  not  support  a  defense  of  in- 
sanity where  the  accused  was  not  laboring  under  the  effects  of 
such  a  fit  at  the  time  of  the  act  and  there  were  circumstances 
showing  sense  and  deliberation  and  a  perfect  understanding  of 
the  nature  of  the  act.7  Nor  will  isolated  instances  scattered 
through  several  years,  tending  to  show  insanity,  which  might  be 
attributed  to  the  excessive  use  of  liquor,  and  acts  which  are  not 
necessarily  signs  of  insanity,  be  sufficient  to  establish  it  as  against 

1  Trial  of  Kinloch,  25  How.  St.  Tr.  891,  997. 

2  Cole's  Trial,  7  Abb.  Pr.  N.  S.  321. 

3  Pettigrew  v.  State,  12  Tex.  App.  225. 

4  United  States  v.  Eidgeway,  31  Fed.  Eep.  144. 

6  United  States  v.  Young,  25  Fed.  Eep.  710  ;  Com.  v.  Meredith,  17  Phila. 
SO ;  Com.  v.  Cleary,  148  Pa.  26. 

6  Boughton  v.  Knight,  L.  E.  3  Prob.  &  Div.  84. 

7  Eeg.  v.  Leigh,  4  Fost.  &  F.  915. 


188  MEDICAL   JURISPRUDENCE   OF    INSANITY. 

evidence  of  competency  to  transact  business  and  that  the  person 
was  treated  by  his  friends  and  associates  as  a  sane  man.1  Nor 
do  an  irritable  temper  and  excitable  disposition  show  insanity.2 
Xor  do  suspicion  of  strangers,  apparent  melancholy,  and 
peculiar  deportment  generally.3  And  a  mere  hallucination  is 
not  of  itself  evidence  of  insanity  though  the  inability  to  correct 
it  may  be.4  And  that  the  accused  was  a  victim  of  inordinate 
passion  does  not  tend  to  establish  his  insanity  where  from  his 
conduct  it  appears  that  he  had  formed  a  deliberate  plan  to  com- 
mit the  act  and  nothing  occurred  to  arouse  sudden  passion.6 
Xor  will  proof  that  the  accused  was  illiterate,  ignorant,  and 
passionate  justify  an  instruction  as  to  insanity  and  the  admission 
of  evidence  of  weak-mindedness.6  So,  evidence  that  the  person 
on  trial  for  homicide  was  subject  to  a  peculiar  mental  infirmity 
whereby,  if  unexpectedly  touched  from  behind  or  in  case  of  a 
sudden  cluck  or  whistle  from  behind  he  would  become  suddenly 
excited,  lose  all  reason  and  self-control,  and  leap  forward  and 
strike  the  person  nearest  him,  furnishes  no  defense  where  at  the 
time  of  the  killing  he  had  not  been  thus  excited.7 

§  7.  Exciting  causes  of  insanity. 

A  person  accused  of  crime  cannot  be  found  to  be  insane  with- 
out proof  upon  the  subject  other  than  the  fact  that  a  cause  ex- 
isted which  might  tend  to  produce  insanity.8  And  proof  of  an 
exciting  cause  of  an  insane  paroxysm  should  not  be  considered 
unless  the  jury  finds  that  there  was  a  latent  insanity  or  a  latent 
tendency  to  insane  paroxysms  which  could  be  converted  into 
actuality  by  the  supposed  cause.9  Thus  an  injury  to  the  head  or 
other  part  of  the  person,  which  might  have  led  to  insanity,  is  not 

1  Hoard  v.  State,  15  Lea,  318. 

2  Willis  v.  People,  32  N.  T.  715 ;  Com.  v.  Cleary,  148  Pa.  2b. 

3  State  v.  Shipper,  10  Minn.  223,  88  Am.  Dec.  70. 

4  Com.  v.  Meredith,  17  Phila.  90. 

6  Sindrain  v.  People,  1  N.  Y.  Crim.  Kep.  448. 
6  Fitzpatrick  v.  Com.  81  Ky.  357. 
:  Thomas  v.  State,  71  Miss.  345. 

A  mental  infirmity  may  readily  assume  a  new  direction,  and  the  killing 
may  have  been  due  to  insanity.     S.  Y.  C. 
s  Sawyer  v.  State,  35  Ind.  70. 
9  Taylor  v.  United  States,  23  Wash.  L.  Rep.  433. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES. 


189 


evidence  from  which  insanity  may  be  inferred,  where  there  is 
nothing  to  show  its  severity  or  physical  consequences,1  though  it 
is  sufficient  to  go  to  the  jury  with  a  definition  of  insanity  in  its 
legal  sense.2  So,  evidence  of  mental  excitement  on  the  part  of 
the  accused  arising  from  misconduct  upon  the  part  of  his  wife, 
which  might  become  a  predisposing  cause  of  insanity,  does  not 
establish  its  existence.3  And  the  testimony  of  a  person  accused 
of  killing  his  wife  and  her  paramour  that  just  prior  to  the  killing 
his  mind  suddenly  left  him  and  became  a  blank  is  not  sufficient 
to  show  that  he  was  incapable  of  forming  an  intent  to  murder, 
where  he  remembers  all  that  took  place  at  the  interview  in  which 
the  killing  occurred,  and  had  known  about  their  relations  for 
some  time.4  Nor  will  proof  of  great  excitement  and  enfeeble- 
ment  of  the  mind  of  a  husband  who  killed  his  wife,  caused  by 
her  association  with  people  of  bad  character,  warrant  his  acquit- 
tal where  he  was  capable  of  transacting  business  and  conversing 
rationally  and  characterizing  her  conduct,  and  appreciating  the 
danger  to  which  his  child  would  be  exposed  if  brought  up  among 
her  associates.6  So,  evidence  of  habitual  drunkenness  contracted 
jears  before,  and  that  the  accused  had  delirium  tremens  a  num- 
ber of  times  and  was  dull  and  nervous  and  did  not  seem  to  be 
himself,  is  not  sufficient  to  show  insanity  or  permanent  mental 
disease.6  And  evidence  that  the  accused  was  an  epileptic,  and 
that  the  tendency  of  that  disease  is  to  weaken  the  intellect  and 
sometimes  produce  total  insanity,  which  fails  to  show  that  it  had 
impaired  his  intellect  to  any  serious  extent,  is  not  sufficient  to 
show  insanity,'  and  will  not  justify  an  instruction  that  if  his  facul- 
ties were  so  impaired  that  he  could  not  recognize  the  person 
killed  he  should  be  acquitted.8  The  court  will  not  assume  as  a 
fact  that  those  afflicted  with  epilepsy  are  easily  excited  to  passion 
.and  revenge  accompanied  with  a  morbid  irritability  which  must 

1  McAllister  v.  Territory,  1  Wash.  Terr.  360. 

8  Reg.  v.  Law,  2  Fost.  &  F.  838. 

8  State  v.  Graviotte,  22  La.  Ann.  587  ;  Sawyer  v.  State,  35  Ind.  80. 

*  People  v.  Osmond,  138  N.  Y.  80. 

6  People  v.  Montgomery,  13  Abb.  Pr.  N.  S.  207. 

c  State  v.  Eiley,  100  Mo.  493. 

■"  Com.  v.  Buccieri,  153  Pa.  535. 

58  State  v.  Hayes,  16  Mo.  App.  560. 


190  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

impair  moral  responsibility  and  which  is  of  itself  sufficient  to- 
negative  deliberation  and  premeditation,  or  that  the  testimony 
showing  epilepsy  is  not  contradicted,  and  instruct  that  this  of 
itself  should  be  sufficient  to  raise  a  doubt  as  to  criminal  respons- 
ibility, where  it  is  contended  that  the  accused  had  not  had  at- 
tacks for  a  long  time,  and  that  from  their  light  character  they 
had  little  if  any  effect  on  his  mental  condition.1  And  evi- 
dence of  epileptic  attacks  supposed  to  have  been  occasioned 
by  a  blow  on  the  head  in  early  life,  and  that  the  mother  of 
the  accused  was  deranged  at  some  period  of  her  life  but  had 
since  recovered,  does  not  establish  insanity  where  it  appears  that 
he  knew  what  he  was  doing  and  appreciated  the  consequences  of 
his  acts,2  and  evidence  of  the  occurrence  of  an  epileptic  fit  after 
the  trial,  in  which  there  was  testimony  that  the  accused  had  fits 
in  his  infancy  and  a  few  later  in  life  and  one  a  week  previous  to 
the  criminal  act,  is  merely  cumulative  and  not  a  ground  for  a 
new  trial.3  But  an  instruction  that  if  the  accused  had  been  sub- 
ject to  epilepsy,  and  epilepsy  is  a  disease  which  tends  to  produce 
insanity,  these  facts  are  not  sufficient  to  raise  a  reasonable  doubt 
of  his  sanity,  is  erroneous  as  tending  to  mislead  and  interfere 
with  the  province  of  the  jury  to  weigh  the  evidence.4  And  the 
fact  that  a  woman  who  killed  her  husband  had  just  recovered 
from  a  disease  which  exhausted  the  vessels  of  the  brain  and  weak- 
ened its  power  and  tended  to  produce  insane  delusions  of  the 
senses  is  evidence  from  which  the  jury  might  find  that  she  was 
not  accountable  for  the  act,  though  the  delusions  were  not  such 
as  to  lead  to  it.5 

§  8.     Hereditary  Insanity. 

Evidence  of  hereditary  insanity  or  of  a  taint  of  insanity  in  the 
ancestors  or  family  of  a  man  is  not  sufficient  to  relieve  from  crim- 
inal responsibility  in  the  absence  of  evidence  of  actual  insanity  in 

1  Com.  v.  Buccieri,  153  Pa.  535. 

■JLovegi-ove  v.  State,  31  Tex.  Crim.  Eep.  491. 

3  People  v.  Montgomery,  13  Abb.  Pr.  N.  S.  207. 

4  Guetig  t.  State,  63  Ind.  278. 

5  Keg.  v.  Law,  2  Fost.  &  F.  836. 

For  Dr.   Clevenger's  discussion  on  this  subject,  see  Epilepsy,  chap. 

xxrv. 


LEGAL   ADJUDICATIONS    IN    CRIMINAL   CASES.  191 

himself.1  But  where  testimony  is  given  directly  tending  to 
prove  insane  conduct  on  the  part  of  the  accused,  proof  of  heredi- 
tary insanity  is' admissible  in  corroboration  thereof,2  and  as  an 
additional  link  in  the  chain  of  circumstances.3  But  it  is  a  mere 
circumstance,  and  before  an  inference  can  be  drawn  from  it  the 
fact  of  the  insanity  of  the  ancestors  must  be  clearly  estab- 
lished.4 And  evidence  of  the  temporary  insanity  of  the  grand- 
mother of  the  accused,  and  of  his  having  fits  while  teething, 
is  too  remote  and  unreliable  to  show  insanity  on  his  part  which 
will  relieve  from  criminal  responsibilit}7.5  But  an  instruction  that 
the  fact  that  some  or  all  of  one's  ancestors  had  been  insane  does 
not  of  itself  prove  him  insane,  that  he  cannot  be  excused  in  the 
absence  of  direct  and  preponderating  evidence  of  insanity,  is  ob- 
jectionable as  requiring  direct  proof  ;6  and  so  is  one  that  evi- 
dence of  insanity  of  the  father  and  aunt  of  the  accused  cannot  be 
considered  unless  the  jury  entertains  a  reasonable  doubt  of  his 
own  sanity,  as  such  a  doubt  would  entitle  him  to  an  acquittal 
without  such  evidence.7  Evidence  of  insanity  in  the  family  of 
the  accused,  and  testimony  of  his  family  physician  and  persons 
who  had  long  known  him  tending  to  show  insanity,  preponderates 
over  opinions  of  persons  not  sufficiently  qualified  and  not  sub- 
stantiated by  reasons,  that  he  was  sane.8 

§  9.  Judicial  determinations  of  insanity. 

As  a  general  rule  a  judicial  determination  that  a  person  is  sane 
or  insane  is  prima  facie  evidence  of  such  fact.9     But  a  finding  of 

'Cole's  Trial,  7  Abb.  Pr.  N.  S.  321;  People  v.  Pine,  2  Barb.  566; 
Bradley  v.  State,  31  Ind.  492;  State  v.  Cunningham,  72  N.  C.  469;  State 
v.  Kalb,  2  Ohio  Legal  News,  364;  Guiteau's  Case,  10  Fed.  Bep.  161. 

2 State  v.  Cunningham,  72  N.  C.  469;  Guiteau's  Case,  10  Fed.  Bep.  161;. 
Beg.  v.  Vyse,  3  Fost.  &  F.  247. 

3  State  v.  Cunningham,  72  K  C.  469. 

4 People  v.  Pine,  2  Barb.  566. 

5  State  v.  Hockett,  70  Iowa,  442. 

6  State  v.  Simms,  68  Mo.  305. 
'Jones  v.  People  (Colo.)  47  Pac.  275. 
8McLeod  v.  State,  31  Tex.  Crim.  Bep.  331. 

For  Dr.   Clevenger's   discussion  on  this  subject,  see   Heredity,    chap.. 
XXIX. 
9  See  chaps.  IX.,  XVII.,  §§  7-9. 


192  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

lunacy  in  another  state  is  of  no  effect  where  it  appears  that  no- 
tice of  the  proceedings  was  not  given,1  and  evidence  that  the  ac- 
cused had  been  confined  in  an  insane  hospital  as  an  insane  man, 
and  the  opinion  of  witnesses  that  he  is  still  insane,  do  not  estab- 
lish insanity  which  will  deprive  him  of  capacity  to  distinguish 
between  right  and  wrong."  So,  an  order  made  by  the  proper 
board  or  officer  finding  a  person  accused  of  crime  to  be  a  fit  sub- 
ject for  treatment  in  a  hospital  for  the  insane  is  not  conclusive  of 
insanity  which  will  render  him  unaccountable  for  his  criminal 
■acts,3  though  it  may  be  evidence  of  insanity.4  And  evidence  may 
be  introduced  to  show  his  mental  condition  before  and  after  the 
proceeding  before  such  board  or  officer.5  And  insanity  which 
authorizes  the  removal  of  a  convict  from  a  penitentiary  to  the 
asylum  is  not  necessarily  permanent,  and  will  raise  no  presump- 
tion as  to  its  continuance  ten  years  afterwards,  though  the  fact 
of  such  transfer  may  be  a  circumstance  to  be  considered  on  the 
question  of  subsequent  insanity  in  connection  with  other  evi- 
dence.6 So,  statements,  declarations,  or  admissions  of  the  ac- 
cused, made  while  an  inmate  of  an  insane  hospital,  are  not  to  be 
deemed  those  of  a  person  of  unsound  mind,  and  allowed  no 
weight  unless  he  is  proved  to  have  been  of  unsound  mind  when 
he  made  them,  as  to  so  regard  them  would  be  to  assume  that  the 
fact  that  he  was  confined  in  a  hospital  is  prima  facie  evidence  of 
insanity.7 

YI.  Insanity  at  and  after  trial. 

§  1.  Effect. 

The  inquiry  into  the  guilt  of  a  person  accused  of  crime  must 
"be  postponed  where  he  is  insane  until  such  time  as  he  shall  be 
able  to  properly  model  his  defense.8  The  trial  and  sentence  or 
punishment  of  an  insane  person  for  a  criminal  act  is  invalid/ 

'  Com.,  Stewart,  v.  Kirkbride,  2  Brewst.  419. 

s  Meyer  v.  People,  156  EL  126. 

sPflneger  v.  State,  46  Neb.  493;  Goodwin  v.  State,  96  Ind.  550. 

4  Pflueger  v.  State,  46  Neb.  493. 

5  Goodwin  v.  State,  96  Ind.  550. 

6  Langdon  v.  People,  133  HI.  382. 
1  Goodwin  v.  State,  96  Ind.  550. 

s  Frith's  Case,  22  How.  St.  Tr.  307.  And  see  Com.  v.  Braley,  1  Mass. 
103. 

9  Freeman  v.  People,  4  Denio,  9,  47  Am.  Dec.  216. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  193 

And  where  there  is  doubt  as  to  the  sanity  of  the  accused  he  is  not 
to  be  put  upon  trial,  but  a  preliminary  proceeding  should  be  in- 
stituted to  ascertain  whether  he  is  sane  or  insane.1  And  where  a 
person  once  found  insane  at  the  time  of  his  proposed  trial  is 
called  for  trial  a  second  time,  if  there  is  then  doubt  as  to  his 
sanity  the  court  must  proceed  as  before  and  try  the  question  of 
sanity  anew,  and  so  on  as  often  as  the  occasion  may  require.2 
This  is  a  common-law  right,3  but  it  is  frequently  provided  for  by 
statute,  and  such  statutory  provisions  are  in  aid  of,  and  substan- 
tially in  affirmance  of,  the  common-law  right,  and  not  in  deroga- 
tion of  constitutional  provisions  securing  to  the  accused  a  fair 
and  impartial  trial.4  The  fact  that  the  defendant  in  a  criminal 
prosecution  was  insane,  however,  when  required  by  the  condi- 
tions of  his  bail  bond  to  plead  to  an  indictment,  and  that  he  had 
been  taken  out  of  the  state  and  confined  in  an  insane  asylum  to 
be  treated  for  his  insanity,  is  no  defense  to  his  sureties  in  an  ac- 
tion on  the  bond.5 

§  2.   Question  when  and  how  raised. 

The  question,  though  usually  raised  when  the  accused  is  brought 
up  to  plead,6  may  be  raised  at  any  time  during  the  course  of  the 
proceeding,  and  if  at  any  time  a  doubt  arises  as  to  his  sanity  it  is 
the  duty  of  the  court  to  suspend  further  proceedings  at  whatever 
stage  the  doubt  arises.7  And  it  may  be  raised  by  counsel8  or  by 
suggestion  from  anyone,9  or  the  court  may  suspend  proceedings 
when  a  doubt  arises  of  its  own  motion,  and  the  counsel  for  the  ac- 
cused cannot  waive  an  inquiry  as  to  his  client's  sanity  where  a 

'Jones  v.  State,  13  Ala.  153;  People  v.  Ah  Ying,  42  Cal.  18;  People  v. 
Farrell,  31  Cal.  576;  State  v.  Harris,  8  Jones,  L.  136;  Peg.  v.  Berry,  34  L. 
T.  N.  S.  590;  Ley's  Case,  1  Lewin,  C.  C.  144. 

2  People  v.  Farrell,  31  Cal.  576. 

s  Freeman  v.  People,  4  Denio,  9,  47  Am.  Dec.  216;  French  v.  State,  93 
Wis.  325. 

4  French  v.  State,  93  Wis.  325. 

6  Adler  v.  State,  35  Ark.  517,  37  Am.  Rep.  48. 

6  Jones  v.  State,  13  Ala.  153;  State  v.  Harris,  8  Jones,  L.  136. 

•People  v.  Ah  Ying,  42  Cal.  18;  People  v.  Farrell,  31  Cal.  576;  Reg.  v. 
Berry,  34  L.  T.  N.  S.  598. 

8  Reg.  v.  Southey,  4  Fost.  &  F.  864;  Reg.  v.  Turton,  6  Cox,  C.  C.  385. 

9  State  v.  Harris,  8  Jones,  L.  136;  Guagando  v.  State,  41  Tex.  626. 

13 


194  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

donbt  exists.1  Present  insanity  at  the  time  of  the  trial,  however, 
must  be  specially  pleaded,  and  cannot  be  established,  like  insan- 
ity, at  the  time  of  the  commission  of  the  act,  under  a  plea  of  not 
guilty.2  And  a  person  charged  with  felony,  who  is  at  liberty  on 
bail  to  answer,  is  not  in  confinement  within  the  meaning  of  Ala. 
Rev.  Code,  §  1060,  authorizing  an  inquiry  as  to  the  sanity  of  per- 
sons in  confinement  under  indictment  with  a  view  to  their  re- 
moval to  the  insane  asylum.3 

§  3.  Determination  as  to  submission  of  issue. 

Whether  a  preliminary  proceeding  shall  be  instituted  to  ascer- 
tain as  to  the  sanity  of  the  person  accused  of  crime  rests  in  the 
sound  discretion  of  the  court.4  The  court  will  not  impanel  a  jury 
to  inquire  as  to  such  sanity  unless  it  can  see  reasonable  grounds 
to  doubt  his  sanity,  and  it  may  inspect  and  examine  him  and  con- 
sider his  actions  and  demeanor  and  read  affidavits  and  inquire  of 
physicians  and  others  touching  his  then  mental  condition  for  the 
purpose  of  determining  what  action  to  take.5  And  the  decision 
of  the  court  will  not  be  reversed  on  appeal,  unless  it  manifestly 
appears  that  it  was  wrong,  or  that  the  discretion  of  the  court  was 
abused.6  And  where  the  prisoner  pleads  to  the  indictment,  the 
omission  to  institute  such  an  inquiry  cannot  be  assigned  as  error, 
though  there  was  ground  for  belief  that  he  was  insane.7  So,  the 
admission  of  evidence  as  to  the  defendant's  insanity  at  the  time 
of  the  trial  does  not  indicate  a  doubt  as  to  his  sanity  which  would 
require  the  submission  of  the  question  to  a  jury,8  and  a  refusal  of 
the  court  to  instruct  that  he  must  be  acquitted  if  then  insane  in- 
dicates that  the  court  had  no  doubt  of  his  sanity.9  And  where 
the  court  has  no  doubt  of  sanity,  and  no  request  is  made  to  have 

'People  v.  Ah  Ying,  42  Cal.  18. 

2  Danfortn  t.  State,  75  Ga.  614,  58  Am.  Eep.  480;  Long  v.  State,  38  Ga. 
491;  Green  v.  State,  88  Tenn.  014. 
?  Ex  parte  Trice,  53  Ala.  540. 

4  Jones  v.  State,  13  Ala.  153. 

5  State  v.  Harrison,  36  W.  Ya.  729,  18  L.  E.  A.  224.     And  see  State  v. 
Arnold,  12  IoTva,  479. 

6  State  v.  Harrison,  30  W.  Ya.  729,  18  L.  E.  A.  221 
1  Jones  v.  State,  13  Ala.  153. 

*  People  v.  Lee  Foot,  85  Cal.  300. 
» People  v.  Lee  Fook,  85  Cal.  300. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  1D5 

that  issue  submitted,  it  docs  its  whole  duty  by  admitting  evidence 
of  insanity  before  and  after  the  commission  of  the  offense,  and 
bearing  upon  the  question  of  sanity  at  that  time,  though  there 
was  evidence  of  insanity  at  the  time  of  the  trial.1  Nor  is  it  proper 
to  instruct  the  jury  to  accpiit  if  the  accused  is  insane  at  the  time 
of  the  trial,  where  no  issue  as  to  present  insanity  is  submitted  to 
them.2  It  is  the  duty  of  the  court,  however,  to  suspend  the  trial 
and  impanel  another  jury,  and  inquire  into  the  question,  where 
there  is  reasonable  ground  for  doubt  of  the  sanity  of  the  accused 
at  the  time  of  the  trial ; 3  and  refusal  to  submit  the  question  on  the 
plea  submitted  by  affidavits  filed  before  the  trial  is  not  cured  by 
trying  the  issue  after  trial  and  conviction.4  And  one  who  has 
been  removed  to  a  lunatic  asylum  will  nevertheless  be  brought  up 
for  inquiry  into  his  sanity  unless  it  would  be  dangerous  to  bring 
him  into  court,  though  the  governor  of  the  asylum  makes  affidavit 
that  he  is  in  a  helpless  state  of  insanity.5  Jurisdiction  given  by 
Ala.  Rev.  Code,  §  1060,  to  circuit  judges  in  certain  cases  to  order 
an  inquiry  as  to  the  sanity  of  persons  confined  under  indictment, 
vests  in  the  judge,  and  not  in  the  court.6 

§  4.   Questions  for  determination. 

The  question  on  a  trial  had  upon  a  suggestion  that  the  defend- 
ant is  insane  is  as  to  his  present  insanity.7  The  jury  has  nothing 
to  do  with  his  condition  at  the  time  he  is  alleged  to  have  com- 
mitted the  act  except  so  far  as  that  condition  may  aid  in  deter- 
mining his  present  condition.8  And  the  accused  cannot  be  kept  in 
an  asylum  until  his  recovery,  and  then  be  again  tried,  where  the 
evidence  as  to  his  insanity  related  to  the  time  of  the  criminal  act 
charged,  and  not  to  the  time  of  the  trial.9 

1  People  v.  Lee  Fook,  85  Cal.  300. 

2  People  v.  Lee  Fook,  85  Cal.  300,  301. 

3  Gruber  v.  State,  3  W.  Va.  699. 

4  Guagando  v.  State,  41  Tex.  026. 

6  Eeg.  v.  Dwerryhouse,  2  Cox,  C.  C.  446. 

6  Ex  parte  Trice,  53  Ala.  546. 

7  People  v.  Farrell,  31  Cal.  576;  State  v.  O'Grady,  3  Ohio  Legal  News, 
137;  State  v.  Arnold,  12  Iowa,  479. 

8  State  v.  O'Grady,  3  Ohio  Legal  News,  137;  State  v.  Arnold,  12  Iowa, 
479;  Walker  v.  State,  46  Neb.  25. 

9  Firby  v.  State,  3  Baxt.  358. 


196  MEDICAL    JL'KISPJJUDEXCE    OF    INSANITY. 

So,  knowledge  of  right  and  wrong  as  a  test  of  insanity  does  not 
apply  to  a  collateral  proceeding  to  ascertain  the  mental  capacity 
of  the  person  about  to  be  put  on  trial  for  a  criminal  act.1  The 
question  upon  such  inquiry  is  whether  the  accused  is  sane  enough 
to  make  a  rational  defense  and  to  present  to  counsel  the  facts 
which  ought  to  be  stated  and  presented  to  the  jury  upon  his 
trial.2  And  no  person  should  be  tried  when  he  has  not  reason  to 
appreciate  his  peril  or  to  act  advisedly  in  suggesting  to  his  coun- 
sel such  facts  as  would  break  the  force  of  the  prosecuting  evi- 
dence and  introduce  such  exculpatory  proof  as  his  case  would 
warrant.3  But  one  who  is  capable  of  rationally  comprehending 
his  own  condition  with  reference  to  the  proceeding,  and  of  con- 
ducting his  defense  in  a  rational  manner,  is  not  insane  within  a 
prohibition  against  the  trial  of  insane  persons.4 

It  is  not  necessary  that  he  should  have  capacity  to  understand 
and  comprehend  all  his  legal  rights,  and  to  make  known  in  the 
most  distinct  and  intelligent  manner  to  his  counsel  all  the  facts 
material  to  his  defense.  It  is  sufficient  if  his  intelligence  is 
such  as  to  secure  him  a  fair  and  impartial  trial.6  And  a  new 
trial  will  not  be  granted  on  the  ground  of  insanity  during  the 
progress  of  the  trial  in  the  absence  of  evidence  of  such  insanity, 
where  proper  consultation  with  counsel  was  had.6  A  person  deaf 
and  dumb  from  nativity  may  be  arraigned  for  trial  if  intelligence 
can  be  conveyed  to  him  by  signs  and  symbols.7  And  evidence 
that  a  person  accused  of  crime  had  been  confined  in  a  lunatic 
asylum,  at  which  time  he  was  in  a  state  of  maniacal  irascibility, 
and  that  he  was  addicted  to  theft,  and  that  he  denied  being  in- 
sane, and  that  his  conduct  while  in  jail  was  different  from  that  of 

1  Freeman  v.  People,  4  Denio,  9,  47  Am.  Dec.  216. 

■  Freeman  v.  People,  4  Denio,  9,  47  Am.  Dec.  216;  State  v.  O'Grady.  3 
Ohio  Legal  Xews,  137;  Guagando  v.  State,  41  Tex.  626;  Bex  v.  Pritcbard, 
7  Car.  <fc  P.  303;  Eex  v.  Dicen,  7  Car.  A:  P.  307;  Frith's  Case,  22  How.  St. 
Tr.  307. 

4  Taffe  v.  State,  23  Ark.  34;  State  v.  Peacock,  50  K  J.  L.  34;  Peg.  v. 
Berry,  34  L.  T.  X.  S.  590. 

4  Freeman  v.  People,  4  Denio,  9,  47  Am.  Dec.  216;  People  v.  Bhine- 
lander,  2  X.  Y.  Crirn.  Eep.  335. 

6  State  v.  Arnold,  12  Iowa,  479. 

6  Com.  v.  Winnemore,  1  Brewst.  359. 

5  Eex  v.  Jones,  1  Leacli,  C.  C.  120. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  197 

others,  does  not  show  insanity  which  will  render  him  incompetent 
to  defend  himself.1 

§  5.  How  determined. 

The  method  of  trial  in  a  proceeding  to  ascertain  the  mental 
condition  of  the  person  accused  of  crime  at  the  time  of  trial  is 
within  the  discretion  of  the  court  in  the  absence  of  statutory  pro- 
visions, but  the  most  discreet  and  proper  method  is  by  trial  by 
jury,2  and  trial  by  jury  is  the  usual  method,3  either  by  the  regular 
panel  or  another  to  be  summoned  for  that  purpose.4  In  Wiscon- 
sin and  West  Virginia  another  jury  is  required.5  The  burden  of 
proof  on  such  inquiry  rests  with  the  accused  to  show  by  a  pre- 
ponderance of  the  evidence  that  he  is  insane.8 

But  in  determining  whether  reasonable  doubt  exists  as  to  sanity 
at  the  time  of  the  trial  the  court  is  not  limited  to  the  case  made 
for  the  prisoner,  but  may  in  its  discretion  investigate  the  matter 
thoroughly  and  take  into  consideration  all  of  the  circumstances.7 
And  the  jury  may  form  their  own  judgment  of  the  present  state 
of  his  mind  from  his  demeanor  during  the  inquest,  though  no 
evidence  is  given.8  Under  the  Ohio  statute  the  verdict  need  not 
be  unanimous,  a  majority  of  three  fourths  only  being  required.8 
A  judgment  on  such  an  inquiry  is  invalid  unless  notice  was  given 
to  the  persons  affected  by  the  proceeding,  and  the  record  recites 
the  existence  of  every  fact  upon  which  jurisdiction  is  based.10 

§.  6.  Effect  and  conclusiveness  of  the  determination. 
Where  one  is  found  to  be  sane  on  a  preliminary  inquiry  as  to 
sanity  at  the  time  of  trial,  he  is  to  be  put  upon  trial  under  the 

1  E?g.  v.  Eobertson,  1  Swin.  (Sc.)  15. 

1  Freeman  v.  People,  1  Denio,  9,  17  Am.  Dec.  216. 

3  See  State  v.  Harris,  8  Jones,  L.  136;  State  v.  O'Grady,  3  Ohio  Legal 
News,  137;  Gruber  v.  State,  3  W.  Va.  699;  Dyson's  Case,  1  Lewin,  C.  C. 
61;  Ley's  Case,  1  Lewin,  C.  C.  144. 

4  People  v.  Farrell,  31  Cal.  576. 

;'  Grnber  v.  State,  3  W.  Va.  699;  French  v.  State,  85  Wis.  ICO,  21  L.  E.  A. 
402. 

6  State  v.  O'Grady,  3  Ohio  Legal  News,  137;  Eeg.  v.  Turton,  6  Cox, 
C.  C.  385. 

"  State  v.  Arnold,  12  Iowa,  479. 

8  Queen  v.  Goode,  7  Ad.  &  El.  536. 

9  State  v.  O'Grady,  3  Ohio  Legal  News,  137. 
>9  Ex  parte  Trice,  53  Ala.  516. 


19S  MEDICAL    JUJUSPKUDENCE   OF    INSANITY. 

indictment  at  once,  and  if  insane  the  result  should  be  certified  to 
the  proper  court  having  jurisdiction,  where  it  will  be  made  the 
foundation  of  an  order  committing  him  to  an  asylum.1  And  the 
trial  of  the  question  of  guilt  or  innocence  upon  the  indictment 
will  not  be  postponed  because  of  an  appeal  on  the  issue  of  insan- 
ity.2 Nor  will  error  committed  on  the  trial  of  a  question  of 
present  insanity  constitute  ground  for  reversing  the  judgment 
afterwards  entered  on  the  trial  of  the  indictment.3  So,  the  trial 
of  such  a  collateral  question  is  not  the  trial  of  the  indictment.4 
And  the  result  can  have  no  legal  effect  upon  the  main  issue.5 
And  a  finding  that  the  accused  was  then  sane  cannot  be  taken 
into  consideration  upon  the  question  of  insanity  set  up  as  a  de- 
fense to  an  indictment,  and  a  refusal  to  receive  evidence  on 
the  trial  of  the  indictment  of  insanity  at  any  time  after  the  ver- 
dict upon  the  preliminary  issue,  and  the  exclusion  of  the  opin- 
ions of  medical  witnesses  formed  from  observation  after  that 
time  is  erroneous.6  In  Texas,  however,  all  evidence  of  jjresent 
insanity  of  the  prisoner  not  intended  to  prove  insanity  at  the 
time  of  the  commission  of  the  offense  is  excluded  on  the  trial  as 
to  guilt  or  innocence,  where  the  accused  was  found  to  be  sane 
upon  a  preliminary  inquiry.7  And  in  Wisconsin,  after  the  jury 
has  failed  to  agree  on  the  special  issue,  the  issue  of  insanity  can- 
not be  again  tried  upon  the  trial  of  the  principal  issue.8  But  a 
finding  by  the  jury  impaneled  to  inquire  as  to  sanity  at  the  time 
of  trial,  that  the  accused  was  insane  at  the  time  of  the  offense,  is 
a  good  defense  in  bar  oi  a  further  prosecution  therefor.9  And 
where  the  jury  disagree  on  the  trial  of  a  special  plea  the  trial 
that  follows  is  to  be  conducted  in  the  usual  manner,  and  the  gen- 
eral verdict  will  be  conclusive  on  the  special  plea  of  insanity.10 
And  a  verdict  upon  a  trial  as  to  present  insanity  is  admissible  on 

1  State  v.  O 'Grady,  3  Ohio  Legal  News,  137, 
-  People  v.  Moice,  15  Cal.  329. 

3  Freeman  v.  People,  4  Denio,  9,  47  Am.  Dec.  216. 

4  Freeman  v.  People,  4  Denio,  9,  21,  47  Am.  Dec.  216,  220. 
6  French  v.  State,  93  Wis.  325. 

6  Freeman  v.  People,  4  Denio,  9,  47  Am.  Dec.  216. 
'■  Shnltz  v.  State,  13  Tex.  401. 
6  French  v.  State,  93  Wis.  325. 

9  Gruber  v.  State,  3  W.  Va.  699. 

10  French  v.  State,  93  Wis.  325. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  199 

a  subsequent  similar  issue  as  tending  to  prove  insanity  at  that 
time.1  So  the  fact  that  it  appeared  to  the  court  that  there  was  a 
question  as  to  the  sanity  of  the  accused  at  the  time  of  the  com- 
mission of  the  offense  does  not  create  a  manifest  necessity  for  the 
discharge  of  the  jury  within  the  meaning  of  a  statute  authorizing 
it  in  such  cases ;  and  in  case  of  such  discharge  the  accused  cannot 
be  tried  again,  but  is  entitled  to  his  discharge.2  Where  one  of 
two  defendants  jointly  indicted  is  adjudged  insane  on  a  separate 
trial  of  that  issue  and  ordered  confined  in  an  insane  hospital,  and 
the  other  is  subsequently  arraigned  and  tried  alone,  there  is  a 
severance  of  the  issue.3 

§  7.  Insanity  after  verdict. 

A  person  though  adjudged  to  punishment  should  not  be  pun- 
ished for  a  public  offense  while  insane.4  And  where  one  becomes 
insane  after  verdict  against  him,  but  before  sentence,  it  is  a  good 
cause  for  staying  the  sentence.5  And  though  no  appeal  of  pres- 
ent insanity  is  interposed,  and  there  is  nothing  to  create  a  sus- 
picion of  such  insanity,  the  appellate  court  may  of  its  own  motion 
inquire  into  the  present  mental  state  of  the  accused  and  make 
proper  recommendation  for  commutation  of  sentence  and  re- 
moval to  an  asylum  if  he  is  found  to  be  insane.6  So,  the  court 
has  power  after  the  expiration  of  a  term  to  reverse  a  judgment 
of  conviction  where  it  appears  that  the  defendant  was  insane  at 
the  time  of  the  trial  and  it  was  not  then  made  known,  and  if 
such  fact  is  disputed  a  jury  may  be  impaneled  in  term  to  try  the 
issue.7 

The  question  in  an  inquisition  of  insanity  after  a  verdict  of 
guilty  is  whether  the  defendant  was  capable  of  comprehending 
the  dangerous  position  in  which  he  was  placed,  and  of  taking 
intelligent  measures  to  meet  it.8     A  plea  of  insanity  as  a  bar  to  a 

1  People  v.  Farrell,  31  Cal.  576. 

-  Gruber  v.  State,  3  W.  Va.  699. 

s  Marler  v.  State,  67  Ala.  55,  42  Am.  Rep.  95. 

4  People  v.  Schmitt,  106  Cal.  48. 

6  State  v.  Brinyea,  5  Ala.  241. 

6  Green  v.  State,  88  Term.  634. 

i  Adler  v.  State,  35  Ark.  517,  37  Am.  Eep.  43. 

8  United  States  v.  Lancaster,  7  Biss.  440. 


200  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

sentence,  however,  is  only  a  plea  to  the  humanity  of  the  court  to 
postpone  punishment  until  a  recovery  takes  place,1  and  if  satis- 
fied of  the  falsity  of  the  plea  the  judge  may  pronounce  sentence 
without  impaneling  a  jury  to  ascertain  the  fact,2  though  in  case 
of  doubt  or  difficulty  a  venire  should  be  awarded  ;3  and  a  plea  of 
insanity  uncorroborated  by  affidavit  must  be  disregarded  where 
there  is  nothing  in  it  to  raise  a  doubt  as  to  the  prisoner's  sanity/ 
So,  a  jury  will  not  be  impaneled  to  determine  the  sanity  of  one 
convicted  of  a  criminal  offense  where  the  question  of  sanity  was 
directly  put  in  issue  on  the  trial.5  And  evidence  of  insanity  be- 
fore conviction  is  inadmissible  unless  explanatory  of  subsequent 
acts.6  And  where  the  question  of  insanity  has  been  passed  upon 
by  the  jury  no  motion  to  stay  sentence  can  be  entertained.7 

§  8.     Effect  of  recovery. 

Insanity  intervening  between  the  time  of  the  commission  of 
the  offense  and  the  trial  therefor  does  not  exculpate  the  person.8 
And  the  accused  is  amenable  therefor  upon  restoration  to  sanity 
upon  the  same  footing  as  other  persons  committing  criminal  acts,' 
and  may  be  required  to  plead  and  be  put  on  trial  upon  his  appar- 
ent restoration  to  sanity  without  making  a  formal  inquiry  as  to 
his  condition,  and  though  the  authorities  of  the  asylum  in  which 
he  was  confined  have  not  certified  to  his  recovery.10  ISTo  formal 
reversal  or  vacation  of  a  previous  judgment  that  he  was  insane  is 
necessary.11 

1  Laros  v.  Cora.  84  Pa.  200. 

2  People  v.  Pico,  62  Cal.  50 ;  Bonds  v.  State,  1  Mart.  &  T.  143,  17  Am. 
Dec.  795. 

3  Bonds  v.  State,  1  Mart.  &  Y.  143,  17  Am.  Dec.  795. 

4  Com.  v.  Buccieri,  153  Pa.  535. 

5  Com.  v.  Baranski,  36  Pittsb.  L.  J.  363 ;  Stover  v.  Com.  92  Ya.  780. 

6  Spann  v.  State,  47  Ga.  549. 

•  State  v.  Brinyea,  5  Ala.  241 ;  State  v.  Yann,  84  N.  C.  722. 
For  Dr.  Clevenger's  comments  on  this  subject,  see  Insanity  after  Judg- 
ment, including  statement  of  case  of  Louis  Lingg,  chap.  YI. 
s  Jones  v.  State,  13  Ala.  153. 

9  State  v.  Pritchett,  106  N.  C.  667. 

10  State  v.  Pritchett,  106  N.  C.  667;  People  v.  Farrell,  31  Cal.  576. 

11  People  y.  Farrell,  31  Cal.  576. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  20l 

VII.  Incapacity  of  female  which  will  affect  rape. 

Sexual  intercourse  with  a  woman  who  is  so  destitute  of  mind 
as  to  be  incapable  of  giving  consent  is  rape  though  she  does  not 
resist.1  The  test  of  mental  capacity  under  this  rule  is  whether 
she  was  capable  or  incapable  of  giving  consent  or  of  exercising 
any  judgment  in  the  matter.2  And  very  slight  proof  of  force  is 
necessary  where  the  woman  lacks  the  intelligence  to  comprehend 
the  nature  and  consequences  of  the  act,  and  to  distinguish  morally 
and  legally  between  right  and  wrong  ;3  and  when  the  man  does 
not  suppose  that  he  has  her  consent  the  force  required  and  which 
is  involved  in  the  carnal  act  is  sufficient.4  But  where  the  will  is 
active,  though  perverted,  the  act  is  not  rape,  when  all  idea  of 
force  or  unwillingness  is  distinctly  disproved.5  And  the  mere 
fact  that  a  woman  is  weak  minded  does  not  disable  or  debar  her 
from  giving  consent  to  the  act,6  and  intercourse  with  her  when 
she  was  capable  of  exercising  her  will  sufficiently  to  control  her 
personal  actions  is  not  rape ;'  and  if  there  is  reasonable  doubt 
whether  force  was  used  the  jury  should  acquit  though  the  woman 
was  of  weak  mind.8  A  woman  with  less  intelligence  than  is 
requisite  to  make  a  contract  may  consent  to  sexual  intercourse  so 
that  the  act  will  not  be  rape  upon  the  part  of  the  man.9  And 
connection  with  a  woman  who  is  in  a  state  of  dementia,  and  not 
.idiotic,  but  approaching  toward  it,  having  a  predisposition  to  be 
with  men  and  a  morbid  desire  for  sexual  intercourse,  is  not  rape 
when  no  circumstances  of  either  force  or  fraud  accompany  the 

1  State  v.  Atherton,  50  Iowa,  189,  32  Am.  Eep.  134;  State  v.  Tarr,  28 
Iowa,  397;  McQuirk  v.  State,  84  Ala.  435;  State  v.  Enright,  90  Iowa,  520 ; 
State  v.  Crow,  10  West.  L.  J.  501;  Eeg.  v.  Fletcher,  Bell,  C.  C.  63,  8  Cox, 
C.  C.  131;  Queen  v.  Byan,  2  Cox,  C.  C.  115;  Bex  v.  Cliater,  13  Shaw's 
J.  P.  766;  McNamara's  Case,  Arkley,  521. 

2  Beg.  v.  Barratt,  12  Cox,  C.  C.  498;  Beg.  v.  Fletcher,  8  Cox,  C.  C.  131; 
Beg.  v.  Connolly,  26  U.  C.  Q.  B.  317.  And  see  Beg.  v.  Pressy,  10  Cox, 
C.  C.  635;  State  v.  Enright,  90  Iowa,  520. 

3  Stephen  v.  State,  11  Ga.  225. 

4  State  v.  Tarr,  28  Iowa,  397;  Beg.  v.  Barratt,  12  Cox,  C.  C.  498. 

5  Crosswell  v.  People,  13  Mich.  426. 

6  McQuirk  v.  State,  84  Ala.  435;  State  v.  Tarr,  23  Iowa,  397. 
1  State  v.  Tarr,  28  Iowa,  397. 

*  McQuirk  v.  State,  84  Ala.  435. 

9  McQuirk  v.  State,  84  Ala.  435,  437. 


2U2  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

act  ;J  nor  is  intercourse  without  resistance  with  a  woman  subject 
to  epileptic  fits,  where  the  evidence  does  not  show  that  she  was 
under  the  influence  of  a  fit  at  the  time.2  The  burden  of  proof 
of  insanity  at  the  time  of  the  act,  and  that  the  carnal  knowledge 
was  obtained  by  force  and  without  consent,  rests  with  the  prose- 
cution.3 There  must  be  some  evidence  that  she  was  incapable 
from  imbecility  of  expressing  assent  or  dissent,1  and  when  con- 
sent is  given  from  mere  animal  passion  or  instinct  it  is  not  rape/ 
and  a  conviction  cannot  be  sustained  in  the  absence  of  evidence 
as  to  her  general  character  for  chastity  and  decency,  or  anything 
else  to  raise  a  presumption  that  she  did  not  consent.6  Evidence 
of  the  connection  and  the  imbecility  alone  is  insufficient.7  But 
evidence  of  habits  of  decency  raises  a  presumption  that  she  would 
not  have  consented  ;8  and  in  an  Iowa  case  it  was  held  that  inter- 
course might  be  rape  when  it  appears  that  the  woman  was  of 
imbecile  mind,  and  that  there  was  nothing  to  indicate  that  she 
desired  it  or  consented  to  it.9  The  rule  is  laid  down  by  some  of 
the  cases  under  statutes  defining  rape  to  be  sexual  intercourse 
with  a  woman  against  her  will  by  force,  threats,  or  fraud,  how- 
ever, that  no  rape  can  be  committed  in  the  absence  of  force, 
threats,  or  fraud,  whatever  may  have  been  the  mental  quality  of 
the  woman,10  though  under  that  rule,  in  estimating  the  efficiency 
of  the  resistance  made  by  the  female,  her  mental  capacity  is  a 
proper  consideration.11  The  introduction  of  the  prosecutrix  as  a 
witness  for  the  state,  in  a  prosecution  for  rape  in  which  it  is 

1  Crosswell  v.  People,  13  Mich.  428. 

2  Baldwin  v.  State,  15  Tex.  App.  275. 

3  Baldwin  v.  State,  15  Tex.  App.  275,  283. 

4  Beg.  v.  Connolly,  26  U.  C.  Q.  B.  317;  Beg.  v.  Fletcher,  10  Cos,  C. 
C.  248. 

5  Beg.  v.  Connolly,  26  U.  C.  Q.  B.  317;  Beg.  v.  Fletcher,  8  Cox,  C. 
C.  131. 

6  Beg.  v.  Connolly,  26  U.  C.  Q.  B.  317. 

I  Beg.  v.  Fletcher,  10  Cox,  C.  C.  248. 
*  Queen  v.  Byan,  2  Cox,  C.  C.  115. 

9  State  v.  Tarr,  28  Iowa,  397. 

,u  Baldwin  v.  State,  15  Tex.  App.  275;  Bodriguiz  v.  State,  20  Tex.  App. 
542;  Crosswell  v.  People,  13  Mich.  427;  Bloodworth  v.  State,  6  Baxt. 
621,  32  Am.  Eep.  546. 

II  Baldwin  v.  State,  15  Tex.  App.  275. 


LEGAL    ADJUDICATIONS    IN    CRIMINAL    CASES.  203 

claimed  that  she  is  so  mentally  diseased  as  not  to  have  power 
to  oppose  the  act,  is  an  indorsement  of  her  competency,  being  in 
effect  a  statement  to  the  "jury  that  she  was  sane  at  the  time  of 
the  events  concerning  which  she  is  called  upon  to  testify.1  And 
a  conviction  will  not  be  reversed  when  there  is  evidence  of  im- 
becility, though  the  evidence  is  conflicting.2 

1  Thompson  v.  State,  33  Tex.  Crim.  Rep.  472. 

2  State  v.  Enright,  90  Iowa.  520. 


CHAPTER  VIII. 

CIVIL  CASES. 

Civil  rights  may  be  affected  in  many  ways  by  mental  condi- 
tions. Benefits  are  secured  and  responsibilities  determined,  as  a 
rule,  dispassionately,  in  civil  cases  when  mental  defects  are  under 
consideration,  and  the  warped  judgment  so  conspicuous  occasion- 
ally in  criminal  procedure  is  seldom  observed  in  civil  cases. 

Differences  between  medical  and  legal  definitions  introduce  ar- 
tificial difficulties  in  addition  to  those  inherent  in  all  that  pertains 
to  insanity.  Imbecility,  for  example,  in  law  may  not  only  include 
general  weakness  of  mind,  which  may  be  ex  nativitate,  as  in  the 
case  of  idiots,  but  dementia  or  the  breaking  down  of  the  intellect 
caused  by  disease  or  old  age.  The  medical  use  of  the  term  "  im- 
becility "  is  much  more  restricted,  but  its  legal  use,  as  noted,  is 
more  general.  As  distinguished  from  lunacy,  imbecility  was  re- 
garded in  the  law  as  without  delusions  or  lucid  intervals  ;  and  the 
test  of  imbecility  consisted  in  the  inability  of  the  subject  to  trans- 
act the  ordinary  affairs  of  life,  to  understand  their  nature  and 
effect,  and  to  exercise  will  in  relation  to  them.  Some  medico- 
legal writers  have  excluded  idiocy  and  imbecility  from  insane 
states,  and  then,  inconsistently  and  accidentally,  mentioned  im- 
becility as  a  form  of  insanity.  The  absurdity  of  such  etymologi- 
cal quibbling  is  shown  by  an  occasional  overthrow  of  the  old- 
distinctions.  In  Iowa,  for  example,  it  was  held  that  a  person  who 
was  ordinarily  called  an  idiot,  but  who  only  became  imbecile 
after  reaching  the  age  of  nine  years,  was  not  an  idiot,  but  an  in- 
sane person,  under  Iowa  Code,  §  1434,  which  restricted  the  term 
"  idiot "  to  persons  foolish  from  birth.  Crazy,  in  a  popular  sense, 
imports  a  broken,  shattered,  or  deranged  mind,  rather  than  one 
enfeebled  by  age  or  disease.1  Unsound  mind,  as  used  in  the 
Indiana  statutes  relating  to  guardianship,  includes  every  species 
of  insanity  or  mental  unsoundness.2  Delusion  was  considered  to 
be  not  the  only  legal  test  for  insanity.3     Moral  insanity  was  un- 

1  Shaver  v.  McCarthy,  110  Pa.  339. 
-  )IcCammon  v.  Cunningham,  108  Inch  545. 

3  Manhattan  L.  Ins.  Co.  v.  Broughton,  109  U.  S.  121,  27  L.  ed.  878. 

204 


CIVIL    CASKS.  205 

derstood  to  be  a  morbid  perversion  of  the  moral  feelings,  without 
illusion  or  erroneous  convictions.  "Walker1  says,  concerning  this, 
that  it  has  never  been  recognized  in  jurisprudence,  and  hopes  that 
it  never  will  be,  because  it  would  not  only  furnish  universal  apol- 
ogy for  crime,  but  introduce  the  utmost  uncertainty  into  civil 
transactions.2  Partial  insanity,  for  reasons  given  supra,  may  be 
considered  as  a  useful  legal  expression,  but  one  that  is  not  coun- 
tenanced by  medical  opinion,  anymore  than- the  term  "partial 
sickness."  3  Lunatics,  in  the  English  law,  include  persons  of  un- 
sound mind  and  idiots.4  Mental  enfeeblement  is  stated  by  Clous- 
ton  to  be  "  a  general  weakening  of  the  mental  power,  comprising, 
usually,  a  lack  of  reasoning  capacity,  a  diminution  of  feeling,  a 
lessened  volitional  and  inhibitory  power,  a  failure  of  memory,  and 
a  want  of  attention,  interest,  and  curiosity,  in  a  person  who  had 
those  mental  qualities  and  has  lost  them,  or  has  come  to  the  age 
to  have  them  and  they  have  not  been  developed." 

The  foregoing,  in  addition  to  what  has  been  mentioned  in  the 
chapter  on  Definitions  concerning  non  compotes  mentis,  unsound- 
ness of  mind,  etc.,  will  eventually  be  of  more  historical  than 
medico-legal  interest,  for  the  looseness  with  which  all  such  ex- 
pressions have  been  used,  in  spite  of  frequent  statutory  attempts 
to  limit  their  applications,  breaks  down  distinctions  and  imitates 
popular  usage.  Here  and  there,  in  some  civil  proceedings, 
what  is  and  what  is  not  included  in  the  terms  "  mental  weakness," 
"unsoundness,"  and  unon  compos  mentis"  may  have  to  be  re- 
garded ;  but  the  main  point  is  that,  although  the  mind  of  a  per- 
son may  be  to  some  extent  impaired  by  age  or  disease,  still,  if  he 
be  capable  of  transacting  his  ordinary  business,  if  he  understands 
the  nature  of  the  business  in  which  he  is  engaged  and  the  effect 
of  what  he  is  doing,  and  can  exercise  his  will  with  reference 
thereto,  his  acts  will  be  valid  and  binding.5 

The  bare  fact  of  imbecility  or  other  mental  defect,  in  itself, 
does  not  warrant  interdiction,  isolation,  or  deprivation  of  the 
rights  of  citizenship.     Every  case  must  be  determined  upon  its  own 

1  American  Law. 

2  State  v.  Spencer,  21  N.  J.  L.  207. 
sBlakely's  Will,  48  Wis.  294. 

4 16  &  17  Vict.  chap.  97. 
"English  v.  Porter,  109  HI.  283. 


206  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

merits;  and  not  even  degrees  of  imbecility  can  be  arbitrarily  created 
to  include  those  who  are  not  capable  of  managing  their  own 
affairs.  Such  things  are  matters  of  fact ;  the  insanity  and  un- 
soundness of  mind  are  related  to  the  inquiry  as  bearing  upon  the 
extent  to  which  they  have  actually  caused  business  incapacity. 

Political  rights.  The  impropriety  of  permitting  imbeciles  to 
vote  upon  public  questions  is  manifest  at  times ;  but  where  such 
defectives  have  not  been  legally  declared  to  be  such,  no  one  can 
refuse  them  the  privilege ;  and,  notwithstanding  the  fact  that  im- 
beciles are  easily  led  and  may  not  exercise  proper  judgment  in 
such  matters,  that  fact  can  never  be  made  a  test  of  such  rights, 
for  multitudes  of  other  than  imbecile  persons  could  be  deprived 
of  political  rights  for  the  same  reason. 

Impeachment  or  vacation  of  office,  on  the  ground  of  insanity 
or  mental  disability,  has  at  times  become  necessary  ;  but  this  pro- 
ceeding is  liable  to  be  instituted  without  cause ;  and  the  unde- 
served stigma  of  insanity  has  been  fastened  upon  those  only 
physically  disabled. 

Under  contracts,  conveyances,  testamentary  capacity,  undue 
influence,  etc.,  civil  considerations  as  affected  by  insanity  can  be 
more  conveniently  discussed ;  many  of  the  principles,  however, 
being  of  general  application. 

Torts  consist  in  acts  constituting  injuries  to  one's  person,  prop- 
erty, or  reputation,1  whether  the  responsibility  is  maintained  or 
not.  A  lunatic  is  so  far  liable  for  his  torts  as  to  subject  his  estate 
to  a  suit  for  damages  to  others  caused  by  its  negligent  manage- 
ment. On  principle,  however,  he  cannot  be  held  liable  for 
malicious  acts  in  cases  where  he  is  not  competent  to  intend  wrong 
(capax  cloli).2 

Defamation,  libel,  and  slander,  by  anonymous  letter-writing, 
or  otherwise,  have  frequently  been  committed  by  insane  persons 
of  many  kinds.  At  the  climacteric  and  in  hysterical  mental 
states  there  is  a  proneness  to  this  species  of  annoyance,  and  in- 
justice is  most  apt  to  be  done  in  hysterical  instances  because  of 
the  difficulty  of  recognizing  the  mental  perversion  at  the  root  of 
such  mischievousness. 

Imbeciles  and  the  circular  insane  are  more  apt  to  commit  of- 

1  Addison,  Torts,  53. 

2Ewell,  Lead.  Cas.  635  et  seq.;  "Whart.  Xeg.  87. 


CIVIL   CASES.  c201 

fenses  against  property  rights.  The  principle  which  makes  the 
lunatic  who  commits  a  trespass  on  the  person  or  property  of  others 
liable  in  damages  by  a  civil  action  was  stated  inWeaver  v.  Ward? 
as  based  on  the  injustice  of  allowing  an  innocent  person  to  suffer 
by  the  acts  of  an  insane  person. 

The  litigious  propensity  of  some  paranoiacs  has  damaged  the 
reputation  and  property  of  innocent  persons,  and  this  fact  should 
be  recognized  and  persecuted  defendants  relieved  so  that  the  law 
may  not  be  the  means  by  which  the  insane  commit  offenses. 

False  accusations  and  confessions  of  the  insane  have  also  occa- 
sioned damage  to  others.  These  acts  are  apt  to  be  performed  by 
persons  during  the  mental  derangements  of  puberty,  the  cli- 
materic,  childbirth,  and  hysteria,  as  well  as  in  paranoia,  melan- 
cholia, and  other  insanities. 

Punitive  damages  cannot  be  recovered  from  the  insane  for 
injuries.  If  actual  injury  is  sustained,  damages  may  be  recov- 
ered for  slanderous  words  spoken  by  a  lunatic  where  the  insanity 
is  not  so  manifest  and  notorious  that  the  words  could  produce  no 
effect  on  the  hearers.  But  insanity  was  held  to  be  a  good  plea 
in  defense  to  an  action  for  slander.2 

Contracts.  As  a  general  rule,  insane  persons  are  incapable  of 
entering  into  valid  contracts,  and  any  agreements  which  they  may 
make  are  either  void  or  voidable.  To  invalidate  such  an  agree- 
ment it  must  be  shown  that  it  was  the  direct  result  of  the  insanity 
alleged.  Delusion  or  insanity  unconnected  with  the  act  under 
consideration  does  not  relieve.  An  agreement  of  an  insane  per- 
son immediately  connected  with  and  growing  out  of  his  insanity 
is  voidable,  and  not  void,  except  in  certain  cases.  Transactions 
that  are  neither  void  nor  binding  must  stand  until  they  are  at- 
tacked by  some  one  whose  position  or  interests  warrant  him  in  so 
doing.3  In  some  states  agreements  with  the  insane  are  void 
under  the  statutes.  Contracts  for  necessaries  supplied  in  good 
faith  to  an  insane  person  and  suitable  to  his  rank  in  life  are  an 
exception  to  the  general  rule  of  voidability.  Where  a  person  in 
good  faith  executes  a  contract  with  another  who  is  apparently 

1  Hob.  134. 

2  Bryant  v.   Jackson,  6  Humph.  199.     See  also  Horner  v.  Marshall,  5 
Munf.  466;  Yeates  v.  Reed,  4  Blackf.  463,  32  Am.  Dec.  43. 

a  Campbell  v.  Kuhn,  45  Mich.  513,  40  Am.  Rep.  479. 


2l>8  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

sane,  and  an  adequate  consideration  is  paid  which  cannot  be  re- 
stored so  as  to  put  the  party  in  statu  quo,  the  contract  cannot  be 
set  aside  by  the  lunatic  or  his  committee. 

It  is  not  agreed  among  common-law  expounders  whether  a 
person  non  compos  mentis  may  be  permitted  to  plead  his  own 
disability  in  avoidance  of  his  contracts. 

One  of  the  logical  results  of  the  English  attempts  to  separate 
unsoundness  of  mind  from  insanity  appears  in  Jenkins  v.  Morris] 
wherein  rational  letters  with  reference  to  a  lease  were  written 
under  a  delusion  that  a  farm  was  impregnated  with  sulphur,  and 
it  was  held  that,  as  it  thus  appeared  that,  in  spite  of  the  delusion, 
business  ability  remained,  the  mere  existence  of  mental  disease 
did  not  constitute  unsoundness  of  mind.  The  lease  was  held 
valid,  notwithstanding  the  fact  that  the  delusion  prompted  the 
desire  to  lease  the  farm  to  get  rid  of  the  sulphur  annoyance. 

Insane  persons  are  incapable  of  contracting  during  the  dis- 
ability. On  this  ground  guardians  are  appointed  to  manage  their 
concerns.  But  sanity  is  always  presumed  until  insanity  lias  been 
once  established,  after  which  the  continuance  of  insanity  is  pre- 
sumed until  the  contraiy  has  been  proved.  The  old  doctrine 
that  a  man  cannot  be  permitted  to  stultify  himself — that  is,  to 
set  up  the  defense  of  insanity — is  now  exploded.  As  to  idiots 
the  test  is  incapacity-  of  understanding  and  acting  in  ordinary 
affairs  of  life.  Mere  mental  imbecility  not  reaching  this  point 
will  not  invalidate  a  contract  fairly  made.2 

Mere  physical  and  mental  weakness  does  not  incapacitate.3 

Promissory  notes.  The  maker  or  indorser  of  a  promissory 
note  may  be  insane,  and  that  fact  may  be  set  up  as  a  defense  to 
an  action  on  the  note.  But  where  one  in  good  faith  takes  a  note 
signed  by  another  of  whose  incompetency  to  do  business  he  has 
no  notice  and  in  a  transaction  which  is  not  likely  to  call  his  atten- 
tion to  it,  he  can  recover  on  the  note.  Where,  however,  a  prom- 
issory note  payable  in  bank  is  given,  upon  an  unexecuted  consid- 
eration, to  one  who  knows  of  the  maker's  disability,  it  may  be 
disaffirmed,  though  it  has  passed  into  the  hands  of  an  innocent 

1  L.  E.  14  Ch.  Div.  674. 

2  2  "Walker,  American  Law,  471;  2  Kent,  Com.  452;  Dennett  v.  Dennett, 
44  X.  H.  531,  84  Am.  Dec.  97;  Bond  v.  Bond,  7  Allen,  1. 

3  DesMoines  Nat.  Bank  v.  Ckisliolm,  71  Iowa,  675. 


CIVIL   CASES.  .  209 

purchaser.  In  such  a  case  the  purchaser  of  the  note  takes  it  with 
constructive  notice  of  the  maker's  disability.1 

Partnerships.  The  insanity  of  a  partner,  by  English  law, 
will  not  itself  work  a  dissolution  of  the  partnership.  It  is  a 
ground  for  dissolution  only  ;  and  if  the  continuing  partner  does 
not  avail  himself  of  it,  it  will  be  presumed  that  he  is  willing  to 
wait  to  see  whether  the  incapacity  of  his  partner  may  not  prove 
merely  temporary.  In  some  of  the  United  States  it  has  been 
decided  that  the  insanity  of  a  partner  works  the  dissolution  of  the 
partnership. 

Patents  by  English  law  may  be  granted  to  insane  inventors.3 
Trademarks  and  designs  are  covered  by  the  same  law. 

Conveyances.  Idiots  are  utterly  incapable  of  making  a  valid 
conveyance,  and  lunatics  can  convey  only  during  their  lucid  in- 
tervals. But  their  guardians  have  the  same  power  to  sell  real 
estate  of  their  wards  as  guardians  of  minors,  and  are  under  the 
same  regulations.3 

The  deed  of  an  insane  grantor  is  only  voidable,  and  not  void, 
in  England  and  those  of  the  United  States  in  which  the  committee 
is  held  not  to  have  an  estate  in  the  lands  of  the  insane  wards.  In 
those  states,  however,  in  which  conveyances  by  insane  persons 
are  declared  void  by  statute,  and  in  those  in  which  the  committee 
is  vested  with  the  legal  estate  of  his  ward,  conveyances  by  an  in- 
sane person  after  the  finding  of  an  inquisition  and  the  appoint- 
ment of  a  committee  are  absolutely  void.  In  order  to  invalidate 
a  deed  executed  by  an  insane  grantor  it  must  appear  that  the 
grantor  was  subject  to  insane  delusions  at  the  time,  and  that  the 
insane  delusion  influenced  him  to  do  the  act,  or  that  he  had  lost 
all  power  of  intelligently  reasoning  on  any  subject. 

Ratification.  Where  the  deed  of  an  insane  person  is  sought 
to  be  established  on  the  ground  that  the  grantor  after  his  restora- 
tion to  sanity  had  ratified  it  by  receiving  and  accepting  the  con- 
sideration, it  must  appear  that  the  ratification  was  the  intelligent 
act  of  the  grantor  knowing  that  he  was  acting  under  the  contract 
contained  in  the  deed,  and  intelligently  availing  himself  of  the 

1 11  Am.  &  Eng.  Enc.  Law,  143. 

2  Patents  Acts  1883,  §  99. 

3  Arnold  v.  Eichmond  Iron  Works,  1  Gray,  434;  Gibson  v.  Soper,  6  Gray, 
279,  66  Am.  Dec.  414. 

14 


210  MEDICAL   JURISPKtJDENCE    OF    INSANITY. 

provisions  of  the  contract  in  his  favor.  Ratification  may  be  in- 
ferred if  the  grantor  after  his  restoration  to  reason  takes  advan- 
tage of  the  beneficial  considerations  contained  in  the  contract  of 
conveyance. 

"  A  court  of  equity  on  good  cause  shown  may  set  aside  a  void- 
able conveyance  of  lands  by  an  insane  person,  and  this  may  be 
done  at  the  instance  of  the  grantor  himself  when  restored  to  rea- 
son, or  by  his  committee  or  guardian,  or  by  his  executor,  admin- 
istrator, or  heirs.  .  .  .  When  a  person  while  sane  enters  into  an 
agreement  to  convey  real  estate,  and  afterwards  becomes  insane, 
equity  will  enforce  the  specific  performance  of  the  contract. 
But  if  the  agreement  is  made  while  the  person  is  insane,  specific 
performance  will  not  be  decreed."1 

It  is  of  medico-legal  importance  to  keep  in  view  the  fact  that 
checks,  contracts,  conveyances,  etc.,  may  be  signed  by  an  epileptic 
without  rationally  intending  to  do  so,  and  that  important  business 
transactions  may  be  forgotten  by  an  epileptic  at  a  time  when  he  is 
considered  sane,  and  in  the  intervals  between  convulsions.  Lucid 
intervals  alleged  to  legalize  transactions  should  be  scrutinized 
with  the  greatest  care.  Paretic  dements  are  quite  prone  to 
launch  out  into  speculations  and  more  extensive  business  gener-1 
ally,  upon  which  during  their  sane  lives  they  would  not  have 
thought  of  venturing. 

Undue  influence  may  operate  in  the  matter  of  contracts  as  in 
wills;  and  the  antipathies  of  mental  weakness,  delusions,  etc.,  of 
the  insane  may,  with  or  without  further  suggestion,  influence  the* 
tenor  of  the  contracts. 

Marriages  are  apt  to  be  unwisely  projected  or  made  by  the  in- 
sane ;  and  it  is  noticed  by  alienists  that  imbeciles  and  other  de- 
generates of  opposite  sexes  are  apt  to  be  mutually  attracted  to  one 
another.  Sometimes  the  wealth  of  a  senile  dement  may  induce  a. 
female  to  overlook  mental  peculiarities ;  and  designing  women 
have  frequently  mated  with  such  insane  persons,  often  succeed- 
ing in  ousting  other  relatives  from  consideration  in  the  testa- 
mentary disposition  of  property  by  senile  dements.  Alcoholics 
during  their  trance  states,  and  head  injury  lunatics,  as  well  as 
paretic  dements,  the  circular  insane,  etc.,  are  liable  to  make  un- 
wise marriage  arrangements,  and  sometimes  when  already  mar- 

1 11  Am.  &  Eng.  Enc.  Law,  149,  151. 


CIVIL    OASES.  211 

ried.  The  absurd  marriage  plans  of  climacteric  females  and  their 
persecutory  attentions  are  recorded  by  most  alienists,  sometimes 
under  ovarian  or  old  maid's  insanity.  Breach  of  promise  may 
become  an  issue  in  such  instances.  A  person  who  is  so  insane  as 
to  be  incapable  of  entering  into  a  valid  contract  concerning  prop- 
erty cannot  enter  into  a  valid  contract  of  marriage.  Mere  weak- 
ness of  understanding  will  not  invalidate,  nor  will  insanity  which 
does  not  affect  the  subject-matter  of  the  contract.  The  authori- 
ties are  in  conflict  as  to  whether  the  marriage  of  an  insane  person 
is  void  ab  initio,  so  that  it  may  be  impeached  collaterally.  This 
raises  the  questions  of  the  legitimacy  of  children  ;  whether  annul- 
ment of  the  marriage  is  necessary  or  obtainable  after  death ; 
the  inheritance  of  estates,  etc.  Asylum  superintendents  are  fre- 
quently asked  as  to  the  hopelessness  of  the  insanity  of  wives  or 
husbands  by  persons  who  wish  to  marry  again. 

In  some  states  divorce  is  granted  for  habitual  drunkenness  for 
three  years,  and  this  may  be  equivalent  to  a  legal  separation  from 
an  insane  person,  not  by  reason  of  the  insanity,  but  its  cause. 

In  marriage,  as  in  other  contracts,  it  is  required  that  each 
party  should  be  capable  of  consent,  or  compos  mentis,  and  there- 
fore idiots  and  lunatics  cannot  marry. 

Insanity  may  not  be  recognized  until  after  marriage,  or  it  may 
occur  in  some  instances  after  the  marriage,  as  in  the  so-called 
"connubial  insanity,"  which  is  a  melancholia  from  exhaustion. 

Life  insurance.  Provisions  in  life-insurance  policies  against 
suicide  are  inoperative  if  the  killing  is  the  result  of  an  insane 
impulse  which  deprives  the  assured  of  all  ability  to  form  a 
rational  judgment  as  to  the  act  he  is  committing ;  and  the  con- 
tract is  therefore  not  avoided.  In  some  cases  it  is  held  that  if  the 
person  insured  was  conscious  of  the  act  he  was  committing,  in- 
tended to  take  his  own  life,  and  was  capable  of  understanding  the 
nature  and  consequences  of  the  act,  the  insurers  will  not  be  liable. 
But  insanity  may  have  induced  the  suicide  in  spite  of  such  con- 
tingencies. When  a  policy  provides  that  the  contract  shall  be 
void  in  case  the  insured  dies  by  his  own  hand,  or  commits  sui- 
cide, the  burden  of  proof  is  upon  the  party  seeking  to  enforce  the 
policy  to  show  that  the  self-destruction  was  not  the  conscious  and 
voluntary  act  of  one  responsible  for  his  actions,  but  the  involun- 
tary act  of  an  insane  person. 


212  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

Business  competition,  probably  more  than  anything  else,  is  in- 
ducing abandonment  of  restricting  clauses  as  to  suicide  on  poli- 
cies ;  and  it  may  be  seriously  questioned  whether  the  act  of 
suicide  itself  may  not  be  urged  as  indicating  insanity  as  properly 
as  where  in  other  civil  cases  the  act  itself  is  made  the  sole  cri- 
terion.    Certainly  self-destruction  is  not  an  indication  of  sanity. 

Insanity  is  not  an  excuse  for  the  nonpayment  of  premiums. 
•  The  propensity  of  paretic  dements  to  secure  insurance  at  the  out- 
set of  then*  insanity  does  not  indicate  their  recognition  of  insanity 
in  themselves,  in  spite  of  the  instance  cited  of  a  physician  who 
sought  voluntary  seclusion  for  that  form  of  insanity ;  as  in  the 
hypochondria  that  precedes  many  mental  derangements  there 
may  be  some  recognition  of  the  impending  insanity,  but  the  pos- 
sibility of  an  insane  person  recognizing  fully  developed  insanity 
iu  himself  must  be  doubted. 

Suicide.  Tabulations  by  Morselli1  indicate  that  the  number  of 
suicides  has  increased  materially  in  the  different  European  states. 
The  statistics  of  an  English  deputy  coroner2  show  that  in  1861 
there  were  sixty-seven  suicides  per  million,  and  a  steady  rise  to 
18S8,  when  the  number  was  eighty  per  million,3  male  suicides 
beino'  from  two  to  four  times  more  numerous  than  females.  The 
temperate  zone  affords  the  greatest  number  of  suicides,  and  the 
Germanic  people  are  more  inclined  to  self-destruction  than 
the  Latins.  Inhabitants  of  mountainous  countries  are  less  sui- 
cidal than  those  of  the  plains.  In  opposition  to  the  popular 
notion  that  jSTovember  is  the  month  that  yielded  the  most  suicides, 
statistics  show  that  the  maximum  is  in  the  warm  season,  decreas- 
ing through  summer,  spring,  autumn,  and  winter. 

Morselli  shows  that  where  crimes  against  property  predominate 
over  those  against  persons,  suicides  are  more  frequent,  and  that 
agricultural  distress  increases  the  number  of  suicides.  During 
great  political  revolutions  suicides  decrease.  Density  of  popula- 
tion increases  the  number.  Self-destruction  is  most  common 
between  the  ages  of  twenty-one  and  fifty,  the  maximum  occurring 
between  forty  and  fifty,  but  in  England  and  Wales  the  maximum 
is  from  fifty-five  to  sixty-five.     The  lunacy  rate  falls  in  propor- 

1  Suicide,  London,  1881. 

s  Suicide,  by  "W.  Wynn  Westcott,  1885. 

2  Journal  of  Mental  Science,  Jan.  1890. 


CIVIL    CASES.  213 

tion  to  population  earlier  than  the  suicide  rate.  Suicides  by 
children  five  years  of  age  are  recorded.  In  France  during  a 
certain  series  of  years  noted  by  Morselli,  the  tendency  to  suicide 
was  greatest  at  above  seventy  in  both  sexes,  while  crime  was 
most  frequent  under  twenty-five.  Celibacy,  though  not  so  in- 
jurious to  women  as  to  men,  increases  the  rate  of  suicide, — 
especially  among  the  divorced.  Women  with  children,  either 
widowed  or  divorced,  are  restrained  from  suicide,  while  divorced 
men  are  prone  to  self-destruction.  Unhappy  marriages  induce 
suicide  in  a  large  number  of  women. 

In  Italy  the  greatest  number  of  suicides  were  associated  with 
industries  least  necessary  to  human  existence,  such  as  the  artistic 
and  some  manufacturing.  Suicides  were  more  numerous  among 
wine  merchants  and  beer-sellers  than  among  tradesmen.  Literary 
and  scientific  men,  merchants  and  bankers,  }7ielded  a  large  pro- 
portion of  suicides ;  lawyers  and  doctors  the  greatest  number. 
Sedentary  occupations  lead  to  suicide  more  often  than  those  that 
entail  severe  manual  labor.  Soldiers  appear  to  have  suicide  sug- 
gested to  them  by  their  weapons,  and  large  rivers  give  both 
opportunity  and  suggestion  to  those  who  live  near  them. 

Suicide  is  more  prevalent  among  the  educated  than  the  unedu- 
cated classes.  Higher  education  is  held  as  only  indirectly  respon- 
sible, though  leading  to  less  exercise  and  simplicity  of  living. 
Rates  of  increase  of  suicide  and  insanity  appear  to  be  associated. 

Imprisonments,  and  particularly  solitary  confinement,  increase 
the  suicide  rates.  The  use  of  alcohol  or  beer  as  a  cause  of  suicide 
is  not  disputed.  Bottcher,  cited  by  Morselli,  claims  that  56  per 
cent  of  suicides  are  due  to  alcoholic  excess.  In  Sweden  the  sui- 
cide rate  fell  with  stringency  of  the  prohibitory  laws  as  regards 
drink.  A  tendency  to  suicide  sometimes  occurs  in  families,  and 
the  disposition  may  be  inherited.  Westcott  claims  that  the 
"  temporary  insanity  "  verdicts  of  coroners'  juries  are  no  indica- 
tion of  the  actual  conditions  in  such  cases.  He  traced  20  per 
cent  of  suicides  to  insanity,  however. 

Of  male  English  lunatics,  25.8  per  cent  in  1887  manifested  a 
suicidal  tendency,  and  females  were  more  numerous  among  these 
than  males,  while  male  suicides  were  in  excess  among  the  general 
population  ;  59.6  per  cent  were  cases  of  melancholia ;  mania  gave 
20  per  cent,  and  dements  16  per  cent. 


214  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

Hanging  or  throat  cutting  is  more  frequent  among  men,  and 
drowning  among  women.     Poisons  are  least  used  by  both. 

The  regularity  with  which  suicides  occur  under  certain  con- 
ditions points  to  the  operation  of  a  general  law  that  enable  us  to 
make  predictions  under  recurring  circumstances.  Morselli  re- 
gards suicide  as  but  one  means  of  elimination  of  the  weak  in  the 
struggle  for  existence. 

Suicide  may  be  committed  by  persons  who  have  shown  no 
other  sign  of  insanity,  and  is  more  common  in  some  forms  of  in- 
sanity than  in  others.  The  mania  and  paretic  dementia  suicides 
may  be  accidental,  and  in  lesser  mental  disturbances  a  pretense 
of  intention  may  result  in  actual  suicide.  Melancholia  is  the 
most  suicidal  form  of  insanity.  Slight  causes  may  precipitate  the 
intention  in  weak-minded,  ill-balanced  people. 

Impulsive  or  deliberate  attempts  may  be  made ;  the  former 
most  usually  by  "nervous"  persons,  the  hysterical,  maniacal, 
alcoholic,  and  epileptic.  Suicide  in  children  indicates  bad  hered- 
ity, as  a  rule.  Delusions,  hallucinations,  and  illusions  have  led 
to  suicidal  acts.  Certain  otherwise  perfectly  sane  persons  have 
uncontrollable  impulses  to  throw  themselves  from  a  height,  and 
doubtless  suicides  have  been  caused  by  such  propensity,  which 
may  be  called  an  obsession. 

The  periodical  melancholiacs  are  persistently  suicidal,  and  the 
insane  with  suicidal  disposition  are  the  most  numerous  in  melan- 
cholia in  general.  Alcoholic  and  head  injury  insanity,  with 
hypochondria,  probably  follow  in  frequency  of  self-destruction, 
though  numerous  other  psychoses  also  exhibit  the  inclination-. 
Senile  dements,  paretic  dements,  and  the  atheromatous  insane,  in 
the  beginning  of  their  disorders,  are  also  thus  disposed  when  they 
recognize  the  fact  of  mental  failure.  Climacteric,  puerperal, 
transitory  frenzy,  epileptic,  delirium  grave,  maniacal,  and  ordi- 
nary delirious  patients  may  accidentally  destroy  themselves. 
Paranoiacs  and  hysterical  persons  have  done  so  when  they  fancied 
it  would  add  to  the  "glory"  of  the  cause  they  represented. 
Rheumatic  and  gouty  persons  during  depressed  stages  of  their 
disease  have  been  suicidally  inclined,  and  even  stupid  terminal 
elements  with  accesses  of  frenzy  have  become  homicidal  and  sui- 
cidal unexpectedly. 

Occasionally  the  insane  mutilate  themselves  terribly,  and  in  a 


CIVIL    CASES.  215 

great  variety  of  ways,  as  by  gouging  out  their  eyes,  cutting  off 
their  hands,  arms,  or  tongues,  or  gashing  themselves  about  the 
person  generally ;  some  have  castrated  themselves,  and  after  or 
during  these  mutilations  they  have  succeeded  in  killing  themselves. 
Upwards  of  thirty  self-inflicted  wounds  were  found  on  the  person 
of  a  suicide.1  A  maniac  reported  by  the  same  author2  had 
twenty-two  wounds  on  his  chest  and  many  distributed  about  his 
arms,  neck,  and  face.  One  wound  had  penetrated  the  heart. 
Beck3  reports  a  suicide  who  inflicted  at  least  a  hundred  wounds 
on  himself.  Numerous  other  instances  abound  in  medical  and 
medico-legal  records. 

The  cunning  practice  of  lunatics  in  attempts  at  suicide  is  men- 
tioned by  Ray.4  Such  "  are  known  to  employ  wonderful  address 
in  procuring  and  concealing  the  means  of  self-destruction ;  pre- 
tending to  have  seen  the  folly  of  their  designs,  and  to  have 
renounced  them  entirely ;  sending  away  their  attendants  after 
thus  lulling  them  into  security,  and,  when  least  expected,  renew- 
ing their  suicidr.l  attempts."  Ray5  also  fully  discusses  the  sub- 
ject of  suicide  from  the  information  available  in  his  time,  and 
classifies  suicides  according  as  they  have  deliberately  committed 
the  act  from  the  force  of  moral  motive  alone,  or  have  been 
influenced  to  do  so  by  disease.  He  mentions  two  youths  who, 
after  dining  sumptuously,  suffocated  themselves  in  the  same  bed, 
as  instances  of  strong  passion  sufficing  for  the  purpose.  He 
speaks  of  the  existence  of  suicide  clubs,  the  members  of  which 
bind  themselves  to  die  by  their  own  hand  within  an  appointed 
time,  and  of  "men  who,  with  cultivated  intellects  and  refined 
passions,  but  entertaining  only  the  meanest  conception  of  the 
great  moral  purposes  of  life,  may  be  ready  to  terminate  their  ex- 
istence the  moment  it  ceases  to  impart  its  usual  zest  to  sensual 
gratification."  He  assigns  moral  depravity,  rather  than  physical 
disease,  as  at  work  in  such  instances. 

Some  persons  who  have  been  prevented  from  carrying  out 
suicidal  designs  have  declared  that  they  had  no  recollection  what- 

Taylor,  Medical  Jurisprudence,  281. 

2  Taylor,  Medical  Jurisprudence,  205. 

3  Medical  Jurisprudence,  69. 

4  Op.  cit.  p.  35. 

*  Op.  cit.  §§  474-488. 


216  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

ever  of  any  such  attempt ;  and  it  is  reasonable  to  suppose  that 
this  is  true  in  instances  where  consciousness  is  at  fault,  as  it  is  in 
so  many  mental  derangements. 

Epidemics  of  suicide  have  taken  place  through  imitative  tend- 
encies. Thirteen  hundred  persons  destroyed  themselves  in  Ver- 
sailles in  1793,  and  in  1506  sixty  killed  themselves  in  Rouen.1 

Ray  thinks  the  survivor  of  an  agreed-upon,  mutual,  murderous 
attempt  should  be  held  for  manslaughter,  in  opposition  to  Mit- 
termaier's  idea  that  he  would  not  be  a  fit  object  for  punish- 
ment. 

All  writers  on  the  medical  jurisprudence  of  insanity  have  men- 
tioned the  potency  of  grief,  or  overwhelming  sense  of  catastro- 
phe, as  effectual  in  not  only  causing  suicides,  but  multiple 
murders,  sometimes  the  destruction  of  an  entire  family  by  a  mel- 
ancholy laborer,  or  other  person  who  is  out  of  work ;  and  fre- 
quently these  murders  and  suicides  are  calmly  and  deliberately 
planned,  without  raising  suspicion  of  the  intention. 

Morselli's  statement  that  the  working  classes  are  less  prone  to 
suicide  should  be  modified  by  mentioning  that,  while  busily  en- 
gaged, they  may  be  less  disposed ;  but  when  out  of  employment 
laborers,  as  well  as  farmers  who  are  suffering  reverses,  add  to  the 
number  of  suicides. 

Even  animals  have  been  recorded  by  zoologists  as  occasionally 
killing  themselves,  either  in  sudden  passion  or  deliberately. 
Dogs  and  horses  have  been  said  to  commit  suicide  from  fear  and 
grief,  and  probably  most  often  in  consequence  of  prolonged  phys- 
ical suffering. 

Trivial  causes  are  sufficient  in  some  persons  to  cause  suicide. 
An  interesting  case  is  reported  of  a  deliberate  and  concealed  sui- 
cide intended  to  cover  systematic  embezzlement.3 

Conservation  of  persons  and  property  is  often  rendered  neces- 
sary by  insanity;  and  the  equity  considerations  involved  fall 
within  the  jurisprudence  of  chancery,  probate,  and  other  courts. 
Reckless  squandering  of  property  is  common  during  alcoholic 
and  many  kinds  of  insanity.  Alcoholics,  paretic  dements,  and 
maniacs  have  torn  up,  burnt,  or  thrown  away  large  sums  of 
money.     Paretic  dements,  circular  insane  patients,  and  others, 

1  Burrow,  Commentaries  on  Insanity,  438. 
2 1  Whart.  k  S.  op  cit.  425,  823. 


CIVIL   CASES.  217 

have  dissipated  their  own  fortunes  and  those  they  were  able  to 
control ;  and  frequently  bankruptcy  has  resulted  or  embezzle- 
ment has  been  committed  before  legal  steps  were  taken  to  pre- 
vent losses  through  insane  acts.  Senile  dements  may,  because  of 
delusions  and  miserly  habits,  be  improper  persons  to  entrust  with 
their  own  property,  or  even  their  own  lives,  which  may  be  for- 
feited by  voluntary  starvation  in  the  midst  of  abundance. 

Imbeciles  may  not  be  deprived  of  the  management  of  their 
property  on  the  ground  of  mental  deficiency  alone ;  some  overt 
act  of  extravagance  or  indiscretion,  or  other  cause  should  indi- 
cate that  an  imbecile,  paranoiac,  or  other  person  who,  though 
known  to  be  "queer"  or  insane,  has  heretofore  transacted  busi- 
ness for  himself,  is  incapable  of  managing  his  affairs.  Haslam's 
suggestion '  that  the  imbecile  should  be  tested  as  to  his  ability  to 
discriminate  in  the  values  of  separate  units  is  of  no  use,  for  an 
imbecile  may  have  a  prodigious  calculating  power,  and  yet  be 
unable  to  apply  it  to  pecuniary  matters.  Besides,  considerable 
money-making  capacity  may  coexist  with  much  mental  degener- 
acy. If  mere  extravagance  and  mismanagement  on  the  part  of  a 
sane  person  does  not  justify  interference,  the  fact  of:  feeble  intel- 
lect of  itself  should  not  suffice ;  but  where  feebleness  of  mind  or 
insanity  is  likely  to  result  in  the  loss  of  means  of  support,  to  the 
detriment  of  the  infirm  person  or  those  dependent  on  him,  con- 
servation would  be  fully  justified.  There  can  be  no  possible  test 
applicable  to  all  cases  nor  even  to  any  class  of  cases,  such  as  im- 
becility ;  for  the  circumstances  and  capacities  vary  within  exten- 
sive limits,  and  every  case  must  be  judged  on  its  own  merits.  A 
court  of  equity  adapts  its  decrees  to  all  the  variety  of  circum- 
stances which  may  arise,  and  adjusts  them  to  all  the  peculiar 
rights  of  all  the  parties  in  interest ;  whereas  a  court  of  common 
law  is  bound  down  to  a  fixed  and  invariable  form  of  judgment  in 
general  terms.2  In  all  questions  of  insanity  it  would  be  well  if 
the  latitude  of  equity  proceedings  were  allowed  to  influence  the 
common-law  decisions,  to  the  extent,  at  least,  of  acknowledging 
the  impossibility  of  regulating  the  entire  matter  of  mental  phe- 
nomena by  "  rule  of  thumb."  When  it  is  necessary  to  interdict, 
to  commit  an  insane  person,  or  to  appoint  a  conservator,  much 

1  Medical  Jurisprudence,  347. 

2  Pomeroy,  Equity  Jurisprudence,  §  146. 


218  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

depends  upon  individual  peculiarities  in  each  case,  almost  impos- 
sible to  summarize,  though  the  characteristics  of  certain  classes  of 
lunatics  may  serve  as  a  guide  to  what  the  insane  person  is  likely 
to  do,  or  to  explain  what  he  has  done  as  consistent  with  insanity. 

An  imbecile  may  converse  rationally  upon  familiar  subjects, 
and  yet  be  incapable  of  much  thought,  judgment,  or  reflection. 
The  question  should  be  confined  to  his  ability  to  manage  affairs 
sufficiently.  Theories  and  inferences  to  that  end  have  been  de- 
molished repeatedly.  The  money  making  and  retaining  ability 
is  not  an  exalted  one,  and  many  imbeciles  possess  it  in  the  ab- 
sence of  many  other  faculties.  Cerebral  neurasthenics,  with  any 
of  the  obsessions  or  propensities,  are  able  to  convince  any  court 
of  their  ability  to  regulate  their  own  affairs,  and  often  to  take 
precautions  against  too  severe  consequences  of  their  impulses. 

While  it  often  happens  that  in  acute  cases  of  insanity  precau- 
tions against  the  dissipation  of  means  have  been  neglected  too 
long,  on  the  other  hand  ordinary  signs  of  senility  have  been  mis- 
taken for  insanity,  with  the  result  of  depriving  a  perfectly  com- 
petent aged  individual  of  his  home  and  other  rights,  often  at  the 
instigation  of  mercenary  and  heartless  persons.  A  jury  may 
be  able  to  tell  whether  one  is  mentally  capable  of  managing  his 
affairs ;  but  whether  the  technical  phraseology  "  unsoundness  of 
mind  "  should  apply,  also,  is  a  different  matter  if  hedged  in  by 
legal  distinctions  as  to  what  that  may  be.1 

That  a  knowledge  of  the  symptoms  of  insanity  is  essential  to 
intelligent  action  in  all  matters  pertaining  thereto  is  well  known 
to  judges  of  county,  probate,  and  chancery  courts,  who  come  in 
such  frequent  contact  with  insanity  cases  as  to  be  startled  into 
finally  recognizing  the  similarity  of  symptoms,  and  particularly 
the  delusions,  of  certain  classes  of  insane.  Were  this  little 
knowledge  of  the  judges  built  upon  by  careful  study  of  the 
entire  subject,  equity  in  insanity  questions  would  be  immeasur- 
ably aided.  At  least,  what  information  the  courts  have  obtained 
through  experience  should  suggest  to  them  the  strong  probability 
that  there  is  a  fairly  well  developed  and  accessible  science  of 
psychiatry,  which  could  be  made  available. 

That  idiots  and  lunatics  are  incapable  of  being  executors  or 
administrators  was  settled  as  early  as  the  reign  of  William  and 

1  Ray,  op.  cit.,  §  6,  p.  9. 


CIVIL    CASES.  219 

Mary ;'  and  also  that  if  an  executor  became  non  compos  the 
administration  conld  be  committed  to  others. 

The  guardian,  committee,  curator,  or  assignee  in  lunacy,  may 
contest  before  the  proper  court  his  ward's  prior  dealings,  and  may 
either  disavow  and  rescind  or  ratify  the  lunatic's  contracts  made 
during  lunacy.2  After  the  recovery,  conservators  occasionally 
have  personal  interests  at  stake  in  seeking  further  control  of  the 
former  insane  person's  property,  and  may  contest  the  alleged 
recovery. 

Commitments  are  regulated  by  legislative  enactment,  and  vary 
widely  in  the  different  states,  and  change  from  time  to  time,  so 
that  a  statement  of  procedure  might  not  be  correct  for  any 
length  of  time.  Most  of  these  statutory  provisions  are  based 
upon  the  popular  idea,  derived  from  sensational  novels,  and  fos- 
tered by  the  lectures  and  lobbying  of  hysterical  and  paranoiac 
persons,  that  incarceration  of  sane  persons  are  frequently  made 
by  relatives  and  others  to  obtain  possession  of  property  wrong- 
full}7.  The  officials  of  public  asylums  can  be  depended  upon,  as 
a  rule,  to  promptly  detect  and  remedy  any  sucli  wrongdoing,  and 
no  experienced  alienist  is  likely  to  keep  a  sane  person  in  durance. 
Granting  that  collusion  of  the  kind  may  be  liable  to  occur  in  pri- 
vate asylums,  and  even  rarely  in  public  institutions,  some  other 
mode  of  inquest  should  be  instituted  than  that  of  haling  sick  un- 
fortunates into  open  court  as  though  they  were  criminals.  Such 
procedure  has  made  some  cases  of  insanity  permanent  which 
would  otherwise  have  recovered,  and  it  is  as  much  of  an  inter- 
ference with  private  rights  as  is  imprisonment  without  warrant. 
The  aversion  of  friends  of  the  insane  to  public  trials  of  ten 
delays  proper  treatment. 

Where  the  provision  is  made  that  a  trial  by  jury  must  be  had 
if  the  patient  prefers  it  to  a  commission,  experience  shows  that 
the  insane  person,  with  his  foggy  ideas  of  why  he  is  arraigned  at 
all,  demands  the  jury  trial  in  a  large  majority  of  cases.  The 
jury  and  court  inquests  might  be  well  enough  if  they  could  be 
conducted  without  the  damaging  publicity  of  open  court  proceed- 
ings, and  in  such  a  way  as  to  protect  the  person  on  trial  from  in- 
justice, and  at  the  same  time  with  proper  regard  for  the  feelings 

■  Hills  v.  Mills,  1  Salk.  36. 
5  2  Bl.  Com.  292. 


220  MEDICAL   JURISPRUDENCE    OF    IXSANITT. 

of  the  invalid,  whose  fancies  often  see  occasion  for  terror  in 
smaller  things  than  being  brought  before  a  judge,  jury,  and  mob 
of  sometimes  offensive  spectators. 

Evidence.  It  should  no  longer  suffice  that  a  medical  witness 
may  assert  his  belief  in  the  sanity  or  insanity  of  a  person.  Rea- 
sons for  such  belief  should  be  elicited  from  him,  based  upon  the 
symptoms  of  the  kind  of  insanity,  if  any  is  claimed.  The  follow- 
ing questions  should  bring  out  the  knowledge  of  the  witness : 
What  is  the  name  of  the  ailment  ?  "What  are  the  symptoms  of 
that  disorder  \  What  evidences  of  such  symptoms  did  you  dis- 
cover in  this  case  ?  What  method  did  you  use  to  ascertain  these 
symptoms  ?  With  what  authors  on  insanity  are  you  familiar  ? 
These  few  questions  suggest  and  open  up  means  of  asking  others, 
which  will  show  whether  the  witness  knows  what  he  is  talking 
about,  whether  be  is  sincere,  prevaricating,  or  mistaken,  informed 
or  otherwise. 

Falsifying  experts  may  be  readily  discomfited  by  being  con- 
fronted with  records  of  their  testimony  in  previous  cases ;  "  chronic 
witnesses"  for  the  sake  of  fees,  when  impelled  by  no  better  mo- 
tive, are  sure  to  leave  traces  of  reckless  testimony,  the  use  of 
which  in  examinations  will  do  more  to  evolve  a  decent  expert 
system  than  all  the  theoretical  methods  that  have  been  suggested. 
Instead  of  the  puerile  assumption  that  "all  experts  are  unrelia- 
ble.;"  the  truth  of  the  matter  is  that  one  who  makes  claims  to 
special  knowledge  may  be,  bike  any  other  person,  good,  bad,  or 
indifferent,  honest  or  dishonest,  skilled,  learned,  or  a  mere  pre- 
tender to  skill  and  learning.  Experts  may  include  jurists  who 
are  experts  in  law,  mechanical  and  civil  engineers,  physicians  and 
editors,  or  artists, — in  fact,  anyone  who  is  presumed  to  have  spe- 
cial information.  It  is  a  precept  with  lawyers  that  the  plain  truth 
enables  a  witness  to  stand  unshaken  on  cross-examination,  and  an 
expert  who  has  earned  a  reputation  for  dealing  in  truth  comes  to 
be  respected  by  bench  and  bar,  and  is  usually  not  cross-examined 
to  any  extent,  for  fear  that  he  will  make  his  case  stronger.  Judges 
readilv  learn  who  are  fair  witnesses,  and  often  charge  the  jury 
strongly  accordingly.  In  time  lawyers  will  bring  their  cleanest 
and  best  cases  to  such  expert ;  but  he  will  not  be  called  into  court 
where  the  services  of  a  hard  swearer  are  considered  necessary ; 
and  hence  from  a  business  point  of  view  the  medical  prostitute 


CIVIL    CASES.  221 

may  have  more  pecuniary  success  than,  though  not  the  self-respect 
of  the  expert  who  cares  more  for  that  than  money.  When  piracy 
was  quasi-respectable,  its  conscientious  opponent  had  to  stand 
sneers  at  his  want  of  business  practicality.  Sweeping  generali- 
zations do  not  become  an  enlightened  age ;  all  experts  are  not 
dishonest  any  more  than  all  judges  are  unjust.  Tailors,  printers, 
and  hatters  are  not  all  drunkards,  as  unthinking  popular  expres- 
sions assert,  any  more  than  all  preachers  are  hypocrites  or  all 
lawyers  knaves.1 

Habeas  carpus  proceedings,  in  the  experience  of  alienists,  are 
most  often  sought  by  insane  persons  who  are  least  fitted  to 
be  at  large.  Alcoholic,  paranoiac,  and  circular  insane  cases,  who 
make  themselves  not  only  nuisances,  but  dangerous  to  others,  are 
most  persistent  in  resorting  to  every  method  of  regaining  liberty, 
and  ignorant  sympathies  are  frequently  brought  to  their  assist- 
ance. Many  tirades  against  "unjust  incarcerations  of  sane  per- 
sons" have  been  instigated  by  sensational  newspaper  and  other 
reports,  some  of  which  emanate  from  insane  persons.  The  pub- 
lic prefers  to  be  startled  into  indignation  over  matters  that  accord 
so  readily  with  its  crude  conception  of  insane  asylum  affairs,  and 
there  is  but  little  inducement  for  newspapers  to  get  at  the  truth 
of  such  matters.  Could  intelligent  investigation  of  the  real  wrongs 
of  the  insane  be  made,  there  would  be  ample  reason  for  public 
indignation  ;  but  the  difficulty  of  understanding  the  merits  of  the 
subject  operates  in  favor  of  hysterical  sensationalism,  and  the  ex- 
ercise of  much  reason  is  not  to  be  expected  of  the  average  public 
mind. 

Personal  injury  resulting  in  insanity,  particularly  when  the 
head  has  been  hurt,  is  the  basis  of  claims  for  damages  against  rail- 
ways and  other  corporations,  or  private  persons.  In  the  chapter 
on  Head  Injury  the  after-effects  of  such  accidents  are  detailed, — 
as,  speech  derangement,  epilepsy,  insanities  of  various  kinds, 
with  homicidal  and  suicidal  propensities,  or  at  least  considerable 
mental  and  bodily  suffering.  Proneness  to  alcoholism,  over-sus- 
ceptibility to  heat,  headaches,  irritability,  memory  impairment, 
eyesight  and  hearing  defects,  often  arise  from  head  injuries,  with 
the  liability  that  insanity  may  develop  in  after  life.  The  effects 
■of  injuries  to  the  spine  I  described  in  a  medico-legal  treatise.3 

1  For  legal  discussion  as  to  Evidence,  see  chap.  X. 

2  "Spinal  Concussion,"  Philadelphia,  1889. 


222  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

Whether  an  injury  has  been  sustained  or  not  is  often  extremely 
difficult,  and  occasionally  impossible,  to  determine,  owing  to  the 
subjectivity  of  symptoms,  or  the  absence  of  anything  that  can  be 
demonstrated  to  a  jury,  and  the  lack  of  any  evidence  except  the 
claimant's  own  statements.  The  consistency  of  the  symptoms 
with  what  has  been  known  to  exist  in  other  cases  is  often  the 
main  evidence,  the  value  of  which,  and  the  possibility  of  simu- 
lating or  malingering,  can  best  be  judged  by  physicians  expe- 
rienced in  such  matters. 

Objective  signs,  symptoms,  or  indications  are  demonstrable  in- 
dependently of  the  patient's  statements.  For  instance,  loss  of 
legs,  arms,  eyes,  a  mutilation,  or  depressed  skull-bone,  are  ob- 
jective. 

Subjective  symptoms  are  not  demonstrable,  and  require  the 
patient's  description.  A  headache,  pains  in  general,  memory 
impairment,  physical  debility,  etc.,  are  subjective,  and  may  be 
simulated. 

A  malingerer,  in  military  and  legal  parlance,  is  one  who  pre- 
tends to  be  suffering  from  a  disability,  or  creates  a  real  disability 
for  purposes  of  fraud. 

There  are  objective  manifestations  of  subjective  symptoms, — 
as,  the  stagger,  the  rigidly  maintained  spine,  and  other  outward 
indications  of  suffering  or  disability,  but  these  also  may  be  simu- 
lated. Some  otherwise  subjective  states  are  convertible  into 
practically  objective  states  by  resort  to  scientific  methods.  Thus, 
an  alleged  paralysis,  which  can  otherwise  neither  be  proved  nor 
disproved,  may  by  electro-diagnosis  be  determined  positively  as 
false  or  genuine.  But  the  experts  capable  of  making  electrical 
examinations  are  not  numerous.  Sleeplessness  is  often  affirmed 
as  one  of  the  symptoms  of  the  injury.  When  the  plaintiff  states- 
that  he  suffers  from  insomnia,  failure  to  corroborate  the  state- 
ment by  the  observation  of  others  would  make  the  sleeplessness 
subjective  ;  but  in  a  hospital,  where  nurses  can  record  the  be- 
havior of  patients,  night  after  night,  testimony  to  the  effect  that 
the  patient  did  not  sleep  would  be  all  important ;  and  when  rela- 
tives and  friends  can  furnish  similar  testimony  the  result  is  prac- 
tically the  conversion  of  the  subjective  into  an  objective  symp- 
tom. General  emaciation,  or  diminution  of  bulk  of  particular 
parts,  as  in  atrophy  of  the  limb,  tremors  or  twitchings,  flushings,. 


CIVIL   CASES.  223 

rapidity  of  heart,  excessive  sweating,  sometimes  of  half  of  the 
body,  cold  extremities,  blueness  of  the  skin,  due  to  imperfect  cir- 
culation, dilation  of  the  pupils,  and  the  reflexes, — are  all  objective 
evidences,  and  tend  to  increase  belief  in  the  genuineness  of  the 
associated  subjective  symptoms.  Even  subjective  symptoms  can 
be  set  forth  in  such  a  way  as  to  make  their  existence  a  probability, 
or  to  show  their  improbability.  Diseases  are  determinable  by 
grouped  characteristics,  capable  of  analysis  and  description ;  and 
one  complaint  differs  from  another  as  a  horse  shoe  does  from  a 
watch,  the  component  parts  of  either  of  which  may  be  described. 
There  is  sometimes  considerable  difficulty  in  presenting  the 
consistency  of  the  plaintiff's  narration  of  symptoms,  for  the  state- 
ment of  a  patient  made  to  a  physician  at  the  time  of  examination 
may,  under  some  interpretations  of  the  law,  be  suppressed,  and 
under  others  be  considered  as  admissible.  As  the  doctor  sifts  the 
reality  of  complaints  in  the  light  of  his  experience  and  knowledge, 
shutting  off  a  description  of  the  medical  analysis  may  practically 
rule  out  all  medical  evidence.  A  plaintiff  with  a  great  hole  in 
his  skull  in  which  the  brain  could  be  seen  pulsating  was  allowed 
to  describe  his  symptoms  on  the  witness  stand  in  his  own  unintel- 
ligent way,  while  the  examining  physician  was  debarred  from 
discussing  these  same  symptoms  from  a  medical  point  of 
view,  because  his  knowledge  was  based  upon  the  statements 
of  the  patient  at  the  time  of  the  examination.  In  other  cases 
no  objection  has  been  made  to  the  fullest  explanation  of  all 
that  pertained  to  the  case,  however  it  may  have  come  to  the 
attention  of  the  physician.  "  The  declarations  of  a  patient  to 
his  physician  respecting  his  condition  and  symptoms  at  the  time 
of  seeking  medical  aid  are  admissible  as  evidence  in  his  behalf, 
under  a  well-settled  exception  to  the  rule  excluding  hearsay. 
.  .  .  The  exception  originally  rested  on  the  ground,  first,  that 
as  the  common  law  forbade  parties  testifying,  the  facts  involved 
could  not  be  proved  in  any  other  way ;  and,  second,  that  the  pa- 
tient's interest  in  the  physician's  opinion  precluded  daiiger  of 
falsehood.  The  modern  practice  of  admitting  parties  as  witnesses 
has  removed  the  first  of  these  grounds ;  but  this  is  not  considered 
a  sufficient  reason  for  excluding  the  testimony.  To  render  it  ad- 
missible, however,  the  plaintiff  must  establish  the  fact  on  which 
the  exception  rests,  that  is,  that  the  declarations  were  made  when 


224  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

seeking  medical  aid." '  This  was  an  action  brought  to  recover 
compensation  for  personal  injuries  sustained  in  a  railroad  acci- 
dent. The  only  contest  was  over  the  amount  due.  The  plaintiff 
called  as  a  witness  a  physician  of  great  reputation  as  a  medical 
expert,  who  had  examined  him  professionally  a  year  after 
the  accident,  when  his  condition  was  much  improved,  and 
asked  him  to  state  the  formers  declarations  at  the  time  respect- 
ing his  condition  and  symptoms,  past  and  present,  together  with 
his  own  opinion  based  on  these  declarations  and  the  personal  ob- 
servations made.  This  testimony  the  court  holds  should  have 
been  excluded  because  the  inference  was  irresistible  that  the 
plaintiff  did  not  call  to  consult  the  doctor  with  a  view  to  medical 
aid,  but  to  employ  and  qualify  him  as  an  expert  to  assist  in  main- 
taining the  pending  suit.  Still,  the  court  holds  that  the  doctor's 
opinion  might  have  been  taken  hypothetically, — based  on  his  ob- 
servations and  the  facts  embraced  in  the  plaintiff's  statements. 
Whether  the  admission  of  such  opinion  should  follow  or  precede 
proof  of  the  supposed  facts  would  have  been  a  matter  of  discre- 
tion ;  but  until  the  facts  were  proved  the  opinion  could  not  be 
considered,  and  if  its  admission  preceded  the  proof  it  should  have 
been  ruled  out  if  the  proof  did  not  follow.  The  opinion  being 
inadmissible,  nothing  indicating  how  much  it  rested  on  the  dec- 
larations and  how  much  on  personal  observation,  it  must  be  ac- 
cepted or.  rejected  as  a  whole. 

Testamentary  capacity.  An  early  English  definition  of  testa- 
mentary capacity  in  mental  disease  was  made  in  Combe's  Star- 
Chamber  Case : 2  "  That  sane  memory  for  the  making  of  a  will 
is  not  at  all  times  when  the  party  can  speak  '  yes '  or  '  no '  or  had 
life  in  him,  nor  when  he  can  answer  to  anything  with  sense,  but 
he  ought  to  be  of  judgment  to  discern,  and  to  be  of  perfect 
memory;  otherwise  the  will  is  void."  Gradual  modifications 
were  made,  and  the  medico-legal  relations  of  lucid  intervals,  in- 
sane delusions,  and  insanity  generally,  were  more  or  less  clearly 
formulated  in  early  case-law.  Lord  Cockburn3  states  the  rule 
thus :  "  That  a  testator  shall  understand  the  nature  of  the  act 
and  its  effect;  shall  understand  the  extent  of  the  property  of 

1  Delaware,  L.  &  W.  E,  Co.  v.  Eoalefs,  70  Fed.  Rep.  22. 

s  Moore,  759. 

3  Banks  v.  GoodfeUow,  L.  E.  5  Q.  B.  519. 


CIVIL    CASES.  225 

■which  he  is  disposing ;  shall  be  able  to  comprehend  and  appreci- 
ate the  claims  to  which  he  ought  to  give  effect ;  and,  with  a  view 
to  the  latter  object,  that  no  disorder  of  the  mind  shall  poison  the 
affections,  pervert  his  sense  of  right,  or  prevent  the  exercise  of 
his  natural  faculties ;  that  no  insane  delusion  shall  influence  his 
will  in  disjDosing  of  his  property,  and  bring  about  a  disposal  of  it 
which  if  the  mind  had  been  sound  would  not  have  been  made." 
An  ancient  work1  admits  testamentary  capacity  even  "  if  a  man  be 
of  mean  understanding,  neither  wise  nor  foolish,  but  indifferent, 
as  it  were  between  a  wise  man  and  a  fool ;  yea,  though  he  rather 
incline  to  the  foolish  sort,  so  that  for  his  dull  capacity  he  may  be 
termed  grossum  caput,  a  dunce,  such  an  one  is  not  prohibited  to 
make  a  testament,  unless  he  be  yet  more  foolish,  and  so  very 
simple  and  sottish  that  he  may  easily  be  made  to  believe  things 
incredible  or  impossible, — as,  that  an  ass  can  fly,  or  that  trees  did 
walk,  beasts  and  birds  could  speak,  as  it  is  in  JEsop's  Fables." 
In  Whitney  v.  Twombly,2  the  following  instructions  to  the  jury 
were  sustained  by  the  supreme  court :  "  Soundness  of  mind 
such  as  will  enable  a  person  under  the  statutes  to  make  a  will  has 
relation  to  the  business  to  be  transacted :  namely,  the  disposition 
•of  her  property  by  the  will.  Her  mind  must  have  been  sound 
with  reference  to  whatever  is  involved  in  this  transaction ;  that  is 
to  say,  she  must  have  been  able  to  understand  and  carry  in  her 
mind  in  a  general  way  the  nature  and  situation  of  her  property, 
and  her  relations  to  those  persons  who  are  about  her,  to  those 
who  would  naturally  have  some  claims  to  her  remembrance,  to 
those  persons  in  whom  and  those  things  in  which  she  has  been 
mostly  interested.  She  must  have  been  capable  of  understanding 
these  things,  and  the  nature  of  the  act  she  was  doing,  and  the 
relation  in  which  she  stood  to  the  objects  of  her  bounty  and  to 
those  who  ought  to  be  in  her  mind  on  such  an  occasion,  and  free 
from  any  delusion  which  has  the  effect  of  disease,  and  which 
would  or  might  lead  her  to  dispose  of  her  property  otherwise 
than  she  would  have  done  if  she  had  known  and  understood  cor- 
rectly what  she  was  doing.  .  .  .  All  the  testimony  covering 
the  whole  latter  portion  of  her  life, — as  to  her  relations  and 
•degree  of  intimacy  with  her  brothers  and  sisters  and  nephews 

1  Swinburne,  Wills,  4. 
3  136  Mass.  145. 
15 


226  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

and  nieces ;  as  to  what  she  said  and  what  she  did ;  as  to  her 
peculiarities,  if  you  find  that  she  had  any,  as  to  her  disposition 
and  temperament,  her  griefs  and  bereavements,  her  attacks  of 
sickness,  whatever  you  may  find  them  to  have  been,  her  habits 
and  manners  as  to  what  you  may  find  that  she  was  not  able  to  do 
and  what  she  was  able  to  do,  may  be  considered  so  far  as  they 
will  aid  you  in  determining  her  condition  of  mind  on  January  2, 
1877.  Age  is  not  of  itself  a  disqualification,  but  it  excites  vigi- 
lance to  see  if  it  is  accompanied  with  incapacity.  Disease  is  not 
itself  a  disqualification,  but  all  infirmities  awaken  caution  to  see 
if  mental  capacity  is  impaired  or  gone." 

The  definition  of  testamentary  capacity  is  a  matter  of  law  for 
the  court.  The  sufficiency  of  the  evidence  must  be  passed  upon 
before  submission  to  the  jury ;  and  it  is  error  to  submit  the  ques- 
tion to  the  jury  if  there  is  no  evidence  that  the  incapacity  existed. 
It  is  not  to  be  assumed  that  it  is  possible  in  all  cases  to  ascertain, 
beyond  doubt,  whether  a  testator  was  in  possession  of  a  disposing 
mind  or  not.  Probabilities  have  to  be  weighed  in  many  instances 
and  allowed  to  determine  matters,  precisely  as  is  necessary  in 
most  human  concerns.  "When  the  symptoms  pertaining  to  certain 
mental  ailments  are  understood,  the  prospect  of  more  intelligent 
judgment  concerning  the  capacity  for  particular  acts  is  brighter. 

Testamentary  capacity  requires  that  in  order  to  make  a  valid 
will  a  testator  must  have  sufficient  capacity  to  comprehend  the 
nature  of  the  act  he  is  performing ;  he  must  understand  the  ex- 
tent of  his  property  of  which  he  is  disposing;  he  must  compre- 
hend the  relations  which  he  holds  to  those  who  have  claims  upon 
him,  and  be  capable  of  making  a  rational  selection  among  them. 
An  insane  person  can  make  a  valid  will  if,  in  spite  of  his  insanity, 
he  has  a  disposing  memory,  judgment,  and  will,  as  defined  above, 
or  is  enjoying  a  lucid  interval  at  the  date  of  its  execution.  Simi- 
larly, a  delusion  foreign  to  the  subject-matter  of  the  will  would 
not  destroy  its  validity.  Recovery  of  testamentary  memory, 
judgment,  and  will,  are  the  essential  matters  in  consideration  of 
a  lucid  interval  which  may  imply  complete  restoration  of  mental 
vigor.1  Neither  subsequent  suicide  nor  supervening  insanity  will 
be  reflected  back  upon  previous  eccentricity  so  as  to  invalidate  a 

1  Dyce,  Sombre,  v.  Solaroli  (1856),  per  Sir  John  Dodson,  1  Deane,  110. 


CIVIL    CASES.  227 

will ; '  but  previous  insanity  modifies  this  rule.3  Moral  insanity 
does  not  invalidate  a  will. 

Upon  the  executor  propounding  a  will  rests  the  burden  of 
proving  testamentary  capacity,  knowledge,  and  approval  of  its 
contents,  and  due  execution ;  and  the  American  case,  Crowin- 
shield  v.  Croioinshield,3  is  cited  as  stating  this  rule  clearly  : 
"  The  heir  at  law  rests  securely  upon  the  statutes  of  descent  and. 
distribution  until  some  legal  act  has  been  done  by  which  his 
rights  under  those  statutes  are  lost  or  impaired." 

Degrees  of  capacity.  The  law  seems  to  require  less  mental 
power  for  the  execution  of  a  will  than  for  making  a  contract.  In 
Harrison  v.  Rowan  4  the  court  said  that  a  testator's  capacity  may 
be  perfect  to  dispose  of  his  property  by  will,  yet  very  inadequate 
to  the  management  of  other  business, — as,  for  instance,  to  make 
a  contract  for  the  purchase  or  sale  of  property.  For  most  men 
at  different  periods  in  their  lives  have  meditated  upon  the  subject 
of  the  disposition  of  their  property  by  will,  and  when  called  upon 
to  have  their  intentions  committed  to  writing  they  find  much 
less  difficulty  in  declaring  their  intentions  than  they  would  have 
in  comprehending  business  in  some  measure  new. 

The  same  degree  of  mental  capacity  is  not  required  in  making 
a  will  of  a  small  and  simple  property  as  of  a  large  and  compli- 
cated estate.6 

A  disposing  mind  does  not  necessarily  mean  a  sound  mind.6 

To  compare  one  mind  with  another  is  a  task  that  is  beyond  the 
power  of  the  average  juror,  and  Ray7  maintains  that  "justice 
merely  requires  that  the  strength  of  the  mind  should  be  equal  to 
the  purpose  to  which  it  is  applied,"  and  that  if  this  simple  prin- 
ciple is  distinctly  presented  to  the  minds  of  the  jury,  there  are 
few  so  dull  as  to  be  unable  to  give  it  practical  application. 

Unnatural  disposition  of  property  tends  to  prove  lack  of  tes- 

1  Hoby  v.  Hoby,  per  Sir  John  Nicholl,  1  Hagg.  Eccl.  Eep.  146. 

2  Symes  v.  Green  (1859),  1  Swab.  &  T.  401. 

3  2  Gray,  526. 

4  3  Wash.  C.  C.  585;  See  also  Brinkman  v.  Eueggesick,  71  Mo.  553;  but, 
contra,  McElroy  v.  McElroy,  5  Ala.  81. 

6  Sheldon  v.  Dow,  1  Dem.  503. 
6  Freeman  v.  Easly,  117  111.  317. 
1  Op.  cit.  §  367,  p.  383. 


228  MEDICAL   JURISPRUDENCE   OF   LXSANITT. 

tamentary  capacity,1  but  giving  the  property  to  a  stranger, 
rather  than  to  a  relative,  does  not,  without  more,  evidence  a 
want  of  testamentary  capacity.2 

Old  age.  Extreme  old  age,  even  when  accompanied  with  dis- 
ease, is  not  in  itself  evidence  of  testamentary  incapacity.  Chan- 
cellor Kent3  stated  that  the  will  of  the  aged  man  "  ought  to  be 
regarded  with  great  tenderness  when  it  appears  not  to  have  been 
procured  by  fraudulent  arts,  but  contains  those  very  dispositions 
which  the  circumstances  of  his  situation  and  the  course  of  the 
natural  affections  dictated." 4  Ray  remarks : 5  "  A  judge  is  seldom 
required  to  decide  questions  of  more  delicacy — questions  that 
demand  such  nice  and  cautious  balancing  of  evidence,  such  pen- 
etration into  motives  and  biases,  such  a  profound  knowledge  of 
the  mental  manifestations  as  affected  by  disease — than  those  of 
mental  capacity  in  old  age,  where  the  mind  is  confessedly  labor- 
ing under  some  kind  or  degree  of  impairment.  The  standard  by 
which  witnesses'  opinions  are  formed  in  such  cases  is  so  different, 
and  the  pertinacity  with  which  each  one  clings  to  his  own  con- 
clusions in  proportion  generally  to  his  ignorance  of  the  subject  is 
so  strong,  that  nothing  but  a  great  display  of  the  above-mentioned 
qualities  will  enable  the  judge  to  perform  his  duty  with  credit  to 
himself  and  satisfaction  to  others.  Unless  he  can  state  the 
grounds  for  his  opinions,  they  are  no  better  than  surmises,  and  he 
fails  of  accomplishing  one  of  the  most  desirable  objects  of  the 
law, — that  of  establishing  and  confirming  the  popular  confidence 
of  its  decisions.  Difficult  as  this  duty  is,  it  will  be  very  much 
lightened  by  attending  to  some  of  those  points  which  can  always 
be  ascertained,  and  which  have  an  important  bearing  on  the 
question  at  issue." 

The  characteristics  of  senility,  and  wherein  it  differs  from  the 
insanity  of  old  age,  senile  dementia,  are  described  in  the  chapter 
entitled  Age. 

Memory  is  requisite  in  the  making  of  wills,  and  relatives  may 

1  Lamb  v.  Lamb,  105  Ind.  456;  Caldwell  v.  Anderson,  104  Pa.  199,  et  seq. 
s  Den,  Trumbull,  v.  Gibbons,  22  N.  J.  L.  117,  51  Am.  Dec.  253. 

3  Yan  Alst  v.  Hunter,  5  Johns.  Ch.  160. 

4  For  f urtker  discussion  and  citation  of  authorities  on  questions  of  testa- 
mentary capacity,  see  chap.  VJJ...  V. 

B  Op.  cit.  S  358,  p.  370. 


CIVIL    CASES. 


229 


for  the  time  being  be  forgotten,  as,  where  there  are  numerous 
persons  to  be  recollected.  There  are  veritable  stages  of  this,  as 
well  as  other  matters  of  senility.  Some  days  the  senile  dement 
may  be  better  as  regards  memory  and  intellect  than  usual.  By 
one  unfamiliar  with  the  propriety  and  necessity  of  protecting  the 
right  of  property  disposal  as  far  as  possible,  even  after  mental 
failure  has  begun,  the  intent  of  the  law  is  not  appreciated  as  it 
should  be ;  and  it  would  seem  puzzling  that  some  aged  persons 
may  be  bereft  of  testamentary  capacity,  while  some  senile  de- 
ments, and  occasionally  other  insane  persons,  are  permitted  to 
make  wills  which  are  considered  valid. 

Imbeciles  afford  every  grade  of  intelligence  below  the  normal, 
and  education,  station,  resources,  etc.,  modify  the  aspects  of  their 
mental  deficiencies,  so  that  no  possible  standard  can  be  invented 
that  will  divide  imbeciles,  even  with  approximate  correctness. 
Hoffbauer's  suggestion  of  three  stages  of  imbecility  failed,  as 
some  superiority  of  intellect  would  be  included  in  an  inferior 
grade,  and  vice  versa.  Imbeciles  have  their  attachments  and  are 
as  likely  as  anyone  to  leave  property  accordingly  as  they  bestow 
their  affections. 

All  that  is  required  to  establish  the  wills  of  people  of  weak 
understanding  is  that  they  should  have  been  capable  of  compre- 
hending their  nature  and  effect,1  of  course  in  the  absence  of 
undue  influence.  "  Nothing  can  be  more  unjust  than  to  infer 
imbecility  in  general  from  facts  that  establish  its  existence  merely 
in  regard  to  certain  subjects  or  relations.  No  one  imagines  a 
general  or  a  statesman  to  be  necessarily  non  compos  because  the 
latter  may  have  shown  himself  incapable  of  conducting  a  cam- 
paign, and  the  former  of  controlling  the  destinies  of  an  empire. 
And  nothing  can  be  more  absurd  as  well  as  unjust  than  to  con- 
clude that  because  a  weakminded  person  can  be  shown  to  have 
acted  shrewdly  in  small  and  familiar  matters,  he  must  possess  a 
legal  capacity  for  the  transaction  of  the  most  important  and  com- 
plicated affairs.  Many  an  imbecile  is  perfectly  competent  to  pur- 
chase the  necessaries  of  life  or  make  contracts  relative  to  personal 
service,  who  could  not  be  trusted  with  the  disposal  of  an  estate 
or  with  making  an  investment  of  money.  We  cannot  help  con- 
cluding, therefore,   that   the  universal  application   of   the   rule 

1  Shelf ord,  Lunacy,  275. 


230  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

compos  and  non  compos  is  repugnant  to  the  most  obvious  princi- 
ples of  justice."  '  The  principle2  that  no  distinction  in  law  need 
be  made  between  important  and  common  affairs,  large  and  small 
properties,  is  erroneous. 

Occasionally,  as  a  test  of  observational  powers,  in  which  it  is 
erroneously  imagined  to  be  the  memory  that  is  involved,  ques- 
tions are  asked  imbeciles  or  others  to  ascertain  how  far  they  may 
be  familiar  with  certain  matters  of  everyday  occurrence.  The 
value  of  this  test  may  be  seen  by  asking  a  roomful  of  company 
to  draw  from  memory  diagrams  of  their  watch  faces,  taking  the 
precaution  to  see  that  no  one  takes  a  glance  at  his  timepiece  to 
refresh  his  recollection.  The  majority,  unless  previously  informed 
of  the  test,  will  insert  the  comparatively  modern  Roman  figure 
IV  in  place  of  the  older  II1I,  and  almost  invariably  the  VI  will 
be  represented,  when  the  second-hand  dial  displaces  that  symbol. 

In  insanity  generally,  varying  degrees  of  testamentary  ca- 
pacity may  be  noted,  according  to  the  profundity  of  the  derange- 
ment, its  duration,  or  the  stage  from  inception  to  convalescence. 
In  the  beginning  of  mania,  wills  may  be  written  which  would  be 
repudiated  after  recovery.  Epileptics  may  make  either  proper 
or  improper  wills  according  as  the  disease  influences  their  minds. 
Usually  the  character  of  the  phraseology,  spelling,  etc.,  would 
indicate  something  in  such  cases,  as  words  or  letters  would  be 
omitted,  or  entire  lines  be  left  out,  or  some  other  peculiarity 
might  point  to  the  mental  obscuration  of  epilepsy;  but  this  is  not 
invariably  the  case,  for  during  the  unconsciousness  of  alcoholic 
or  epileptic  occasions  very  lucid  and  legible  documents  have 
been  written  by  such  persons. 

The  effect  of  delirium  upon  testamentary  capacity  is  fully 
quoted  from  Ray  in  the  chapter  on  Yesanias.  There  is  danger 
in  this  state  of  making  a  coherent  will  which  would  not  be  ap- 
proved by  the  sane  person  when  in  full  possession  of  his 
faculties. 

Lucid  intervals  in  intermittent  insanity  invert  the  order  of 
proof  and  presumption ;  habitual  insanity  requires  that  the  party 
who  would  take  advantage  of  the  fact  of  an  interval  of  reason 

1  Kay,  op.  cit.  §  125,  p.  14G. 
s  Story,  Com.  Eq.  238. 


CIVIL    CASES.  231 

must  prove  it.1  A  restoration  of  the  faculties  at  the  very  period 
of  executing  a  will  must  be  shown.3 

Physical  disabilities  are  frequently  misinterpreted  as  indi- 
cating mental  disease  when  such  may  not  have  occurred ;  and 
usually  when  the  speech  faculty  is  not  deranged  an  estimate  of 
the  mental  condition  may  be  obtained  as  disproof  of  an  assump- 
tion that  the  mind  is  impaired ;  but  when  speech  happens  to  be 
involved,  as  after  a  paralytic  stroke,  it  is  not  so  easy  to  tell 
whether  mentality  is  involved  in  the  change,  or  not.  Speech 
faculty  loss  or  impairment  is  not  necessarily  accompanied  with 
mental  disturbance,  though  it  may  be  and  often  is  so  associated. 
Physical  disabilities  may  threaten  to  involve  the  mind,  and  even 
a  matter  so  little  noticed  as  the  obstinate  constipation  of  an  old 
person,  sometimes  to  the  extent  of  going  ten  or  more  days  with- 
out a  movement,  is  a  serious  menace  to  the  integrity  of  the  circu- 
lation, for  apoplexy  has  frequently  resulted  from  such  neglect  or 
disability.  Actual  disease  of  the  brain  does  not  necessarily  inca- 
pacitate from  disposing  of  property,  and  a  ruptured  blood  vessel 
in  the  brain,  or  other  damage  to  the  seat  of  intellect,  may  impair 
only  some  physical  function,  or  it  may  also  involve  the  mind. 
Testamentary  capacity  may  exist  in  spite  of  hemiplegia  with 
aphasia;  but  whenever  the  speech  faculty  is  disturbed,  in  dam- 
age to  the  brain,  there  is  danger  that  the  mind  is  also  involved, 
though  it  may  be  shown  that  such  is  not  the  case.  Right-side 
paralysis  in  a  right-handed  person  is  of  more  importance  than 
left-side  paralysis  in  the  same  person,  as  far  as  mental  capacity  is 
concerned.  The  speech  is  not  affected  in  left-side  paralysis  un- 
less the  person  is  left-handed  ;  and  hence  the  mental  operations, 
with  which  language  is  so  intimately  connected,  escape  impair- 
ment in  paralysis  of  the  left  side  of  a  right-handed  person.  But 
every  case  should  be  separately  considered,  as  there  may  be  con- 
ditions and  complications  that  apparently  or  really  change  the 
rule.  Medical  works  generally  will  be  found  to  sustain  the  view 
that  the  mind  is  not  impaired  in  paralysis,  especially  of  the  left 
side,  after  recovery  from  the  apoplectic  shock  which  may  have 
been  induced  by  the  paralysis. 

Gowers s  states :    "  One  aspect  of  the  question  of  speech  defect 

1  Jarman,  "Wills,  72. 

2  Halley  v.  Webster,  21  Me.  461. 

3  Diseases  of  the  Brain,  146. 


232  MEDICAL    JUKISPKUDENCE    OF    INSANITY. 

is  of  considerable  practical  importance :  its  relation  to  the  capac- 
ity for  making  a  will.  In  pure  motor  aphasia,  in  which  the  audi- 
tory word  processes  are  intact,  words  that  are  heard  are  perfectly 
understood,  and  assent  or  dissent  can  be  expressed,  although  only 
by  gesture,  the  patient  could  certainly  make  a  will.  If  there  is 
considerable  word  deafness,  it  is  always  so  doubtful  whether  the 
meaning  of  what  is  said  is  correctly  perceived  that  there  is 
probably  no  testamentary  capacity  unless  written  words  are  per- 
fectly understood,  and  all  communications  are  thus  made.  A  for- 
tiori, if  there  are  both  word  deafness  and  word  blindness,  a  valid 
will  could  not  be  made." 

"  Paralysis  agitans  (shaking  palsy,  or  Parkinson's  disease),  as  well 
as  chorea,  or  St.  Vitus'  dance,  or  another  disorder  known  as  mul- 
tiple cerebral  sclerosis,  may,  each  and  all  of  them,  so  interfere 
with  rational  control  of  the  body  and  limb  movements  as  to  give 
an  appearance  of  mental  disturbance,  when  the  mind  is  usually 
perfectly  clear  in  such  ailments.  I  have  known  cases  of  chorea 
to  be  associated  with  insanity,  and  also  instances  where  the  in- 
sane-appearing movements  led  to  mistakes  as  to  the  mental  state, 
and  m  one  instance  the  committal  of  a  sane  woman  with  chorea 
to  the  asylum.  Pepper1  refers  to  Professor  Lordat,  who  pre- 
pared and  thought  up  his  lectures  while  aphasic,  and  Magnan * 
describes  an  instance  of  a  will  being  correctly  drawn  up  by  a 
word-blind  person  who  was  unable  to  read  it  understandingly. 
Alex.  Robertson 3  claims  that  the  motor  aphasic,  retaining  reason- 
ing power  almost  entirely,  is  an  accountable  agent,  whereas  the^ 
sensory  aphasic,  if  the  disorder  be  complete  and  involves  both 
auditory  and  visual  cortical  areas,  cannot  reason  and  is  therefore 
irresponsible.  It  is  very  different  with  the  minor  defects,  word 
deafness  and  word  blindness.  The  uncertainty  respecting  the- 
mental  condition  in  slight  forms  of  the  disorder  is  greater  in  re- 
cent cases  than  in  those  of  long  standing,  unless  advance  in  the 
disorder  has  been  made,  as  sometimes  happens.  A  patient  may 
appear  to  understand  when  he  does  not ;  some  idea  can  be  formed 
from  his  conduct,  but  careful  tests  are  often  necessary  to  reach 
an  estimate. 

1  System  of  Practical  Medicine,  V.  956. 

2  Ibid.  957. 

3  Tuke,  op.  cit.  983. 


CIVIL  CASES.  233 

Delusions  and  strange  oeliefs.  Whenever  the  testator's  mind 
is  so  deranged  that  he  makes  his  will  under  the  influence  of  an 
insane  delusion  the  will  is  void.  But  the  existence  of  delusions, 
however,  is  not  necessarily  incompatible  with  intellect  sufficient 
to  make  a  will.' 

In  an  obiter  dictum  Lord  Brougham2  criticised  the  popular 
definition  of  monomania,  declaring  that  the  mind,  being  one  and 
indivisible,  if  unsound  upon  a  single  subject,  could  not  be  sound 
upon  other  subjects,  and  impliedly  held  that  a  person  partially 
insane  was  incompetent  to  make  a  will.  The  far-reaching  and 
perplexing  effects  of  such  words  can  be  imagined.  While  essen- 
tially right,  the  confusion  of  unsoundness  of  mind  with  testa- 
mentary capacity,  two  separate  and  distinct  considerations,  ex- 
plains the  situation. 

Hallucinations  have  frequently  been  experienced  by  sane  per- 
sons. After  puerperal  convulsions,  for  many  months  there  may 
be  slight  hallucinations,  and  some  of  the  apparitions  may  be  dis- 
tressing, such  as  threatening  gesticulations,  or  appearances  of 
persons  long  since  dead  or  known  to  be  at  great  distances  away. 
Dr.  Sam  Johnson,  the  famous  lexicographer,  and  Lord  Castle- 
reigh,  are  mentioned  as  having  entertained  hallucinations,  while 
they  were  not  regarded  as  insane ;  and  the  instance  of  the 
"  hallucination  "  in  the  experience  of  Abraham  Lincoln,  who  saw 
a  faint  double  reflection  of  himself  in  a  mirror,  may  be  explained 
as  an  optical  illusion  due  to  imperfect  glass  or  to  reflections  from 
both  surfaces  of  the  glass.  But  hallucinations,  as  well  as  delu- 
sions or  illusions,  are  compatible  with  mental  soundness  or 
sanity. 

Prejudices  against  relatives.  Unreasonable  prejudice  against 
relatives  is  not  ordinarily  a  ground  for  invalidating  a  will.* 
Omissions  of  a  relative's  name  from  a  will  may  be  due  to  mem- 
ory failure,  and  give  the  appearance  of  deliberate  disinheritance, 
which  was  not  intended.  The  perverted  affections  of  some 
puerperal  women  and  hysterical  women,  and  similar  aversions- 
that  occur  in  melancholia,  circular,  gouty,  rheumatic,  and  phthisi- 
cal insanity,  could  readily  suggest  very  unreasonable  testamentary 

1  Eice  v.  Eice,  53  Mich.  432. 

2  Waring  v.  Waring  (1848)  6  Moore,  P.  C.  341. 
s  HaE  v.  Hall,  38  Ala.  131. 


234  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

dispositions.  Cerebral  neurasthenics,  even  during  their  worst 
accesses  of  fear  or  impulse,  would  not  be  likely  to  be  affected,  at 
any  time,  so  far  as  a  disposing  mind  was  concerned ;  and  after 
recovery  from  simple  mania  or  melancholia  there  need  be  little 
apprehension  of  a  mental  warp  in  any  way  when  convalescence 
is  fully  established.  At  first  some  excitability  and  memory  de- 
fects may  be  noted,  but  ordinarily  these  disappear  in  a  short 
time.  Of  course  the  periodical  cases  are  liable  at  any  time  to  go 
astray  mentally ;  and  it  is  the  vesanic  cases  of  melancholia  and 
mania,  transitory  frenzy,  and  delirium,  in  which  there  are  perma- 
nent recoveries. 

Paretic  dements  may,  in  accordance  with  their  grandiloquent 
insane  ideas,  make  absurd  wills.  There  should  not  be  much 
difficulty  in  discerning  the  insanity  in  whatever  a  paretic  dement 
may  write.  Violent,  unreasonable  antipathies  against  certain 
offspring  or  other  individuals  may  be  the  main  and  only  dis- 
covered symptom  of  insanity. 

The  handwriting  and  letters  may  determine  mental  states. 
Instances  have  been  recorded  where  the  insanity  was  revealed 
only  in  the  letters,  or  the  letters  may  appear  sane  and  the  writer 
be  undoubtedly  insane.  Letters  of  the  insane  may  contain  absurd 
accusations  or  extravagances.  Free  use  of  exclamation  points 
and  underscoring,  repetitions,  omissions,  incoherence,  blots,  illegi- 
bility, and  the  other  contents  generally,  of  letters  of  the  insane, 
are  often  valuable  aids  to  understanding  the  extent  and  nature 
of  their  maladies.  Signatures,  computations,  accounts,  or  the 
failure  to  keep  records  previously  maintained,  may  have  their 
weight,  along  with  conduct  in  general. 

The  effect  of  certain  pursuits,  intellectual  or  routine  non- 
intellectual  occupations,  as  tending  to  preservation  or  decay  of 
the  mind,  is  occasionally  discussed  during  will  contests.  For 
instance,  an  aged  person  who  has  been  devoted  to  business 
matters  all  his  life,  and  who  has  few  mental  resources  aside  from 
such  activities,  is  compelled  by  bodily  infirmities  to  relinquish  his 
accustomed  habits  of  thought  and  work,  whereupon  he  appears 
in  a  new  light ;  and  the  enforced  abandonment  of  all  that 
engaged  his  attention  and  interested  him  may  make  it  possible  to 
construe  his  condition  as  a  mental  impairment,  when  he  may  be 
in  possession  of  all  the  mentality  he  ever  had.     On  the  other 


CIVIL   CASES.  235 

hand,  an  educated  person  finds  some  compensation  for  his  afflic- 
tions in  books,  writing,  or  conversation,  and  will,  under  similar 
circumstances,  appear  to  better  advantage.  When  a  person  is 
taken  out  of  his  usual  environment,  through  sickness  or  other- 
wise, mental  distress  is  almost  inevitable ;  and  deterioration  of 
the  mind  is  likely  to  follow  upon  deprivation  of  accustomed 
exercise  of  mind  or  bod}'.  Retired  merchants  or  sailors  are 
affected  by  leisure  far  differently  from  scholars  and  professional 
persons. 

Undue  influence  may  be  exerted  in  securing  gifts  or  in  pro- 
curing testamentary  dispositions,  the  first  by  some  personal 
advantage  obtained  by  a  donee  placed  in  some  close  and  con- 
fidential relation  to  the  donor.1  A  spiritual  medium  induced  a 
widow  to  adopt  him  and  his  son,  and  transfer  £60,000  to  him, 
and  make  a  will  in  his  favor,  by  representing  that  the  deceased 
husband  had  communicated  such  a  desire  to  the  widow  through 
the  medium.  The  gifts  were  declared  to  be  fraudulent  and 
void.2  Groundless  suspicions  of  improper  influence  may  arise 
through  interest  and  jealousy. 

"  In  order  to  set  aside  the  will,  deed,  or  contract  of  a  person 
by  reason  of  undue  influence  we  must  have,"  according  to  Amos 
G.  Hull,  of  the  New  York  Bar,3  "  (1)  a  subject  whose  mind  is 
impaired  by  disease  or  infirmity ;  (2)  there  must  be  fraudulent 
persuasion  or  irresistible  importunity ;  (3)  the  subject  must  be 
fraudulently  induced  to  do  that  which  he  would  not  do  if  left 
free  and  in  his  normal  condition  ;  (4)  when  these  concur  we  have 
undue  influence ;  but  when  a  man  in  the  free  and  healthy  pos- 
session of  his  powers  is  induced  by  trick,  deceit,  cunning,  or  cir- 
cumvention, to  execute  a  deed  or  a  will,  or  make  a  contract  un- 
just to  himself  or  others,  such  cases  are  denominated  actual 
frauds,  and  redress  should  be  given  in  the  courts  under  that 
characterization." 

A  "  due  "  influence  exerted  in  the  instance  of  an  insane  person 
may  be  falsely  interpreted,  or  an  undue  influence  may  be  set  up 
as  a  proper  one.  Imbeciles  are  particularly  liable  to  be  unduly 
influenced  in  any  and  all  matters ;  therefore  the  slightest  appear- 

1  Allcard  v.  Skinner  (1887),  L.  E.  36  Ch.  Div.  181. 
s  Lyon  v.  Home  (1868),  L.  E.  6  Eq.  655,  682. 
3  Alienist  and  Neurologist,  January,  1888,  p.  94. 


236  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

ance  of  interference  or  improper  influence  should  be  closely 
scrutinized ;  and  the  weight  of  evidence  required  to  substantiate 
its  existence  should  be  in  proportion  to  the  liability  of  the  party 
to  have  been  affected  by  it.1  Evidences  of  fraud  would  be  most 
likely  to  appear  if  improper  diversion  of  property  had  been  made 
in  the  will  of  an  imbecile. 

During  paranoia  someone  may  take  advantage  of  the  delu- 
sions of  persecution  to  the  detriment  of  the  lunatic  or  those  de- 
pendent on  him.  The  general  suspiciousness  of  the  paranoiac, 
however,  might  render  this  less  likely.  But  such  delusional  in- 
sane persons  are  dangerous  to  swindlers,  as  they  are  apt  to 
avenge  themselves  if  they  ascertain  the  fraud. 

Climacterics,  through  spiritualistic  and  other  religious  zeal, 
may  be  improperly  influenced  in  the  disposition  of  property. 
Senile  dements  are  particularly  liable  to  fall  into  the  clutches  of 
designing  persons  who  prey  upon  and  instigate  prejudices.  Ma- 
niacs or  paretic  dements  may  be  imposed  upon  through  their 
generosity  ;  melancholiacs  are  more  apt  to  give  away  property 
outright  than  to  write  wills ;  but  either  may  be  done  for  the  pur- 
pose of  getting  rid  of  means  to  which,  in  their  feelings  of  un- 
worthiness,  they  regard  themselves  as  not  entitled. 

Terminal  dements  are  as  likely  as  imbeciles  to  make  unwise 
transfers  of  property ;  the  Hull  House  case  of  a  dement  who- 
transferred  a  house  and  lot  for  a  steerage  passage  ticket  to  Ire- 
land is  an  instance. 

Undue  influence,  or  what  could  be  better  described  by  some 
other  name,  was  exerted  in  the  case  of  a  dyiug  senile  dement  who 
was  induced  to  disinherit  his  daughter  by  the  revengeful  rejected 
suitor  of  that  daughter.  A  complicated  example  of  senile  manip- 
ulation was  that  of  a  nephew  who  agreed  to  provide  for  an  aged 
dement  if  all  the  property  was  transferred.  Upon  the  deed  being 
made  the  old  man  was  forthwith  set  into  the  street.  Some 
friends  contested  the  deed,  but  the  nephew  actually  bought  up 
the  witnesses  who  testified  for  the  old  man,  and  eventually  in- 
duced the  dement  to  testify  against  his  own  interests. 

An  insane  asylum  under  religious  management  had  charge  of 
a  hebephrenia  case,  a  young  man  whose  father  left  the  patient  a 
million  dollars.     Soon  after  the  father's  death  the  patient  fell 

1  Kay,  op.  cit.  p.  144,  §  124. 


CIVIL  CASES.  237 

sick,  and  the  family  attorney  remembered  that  the  insane 
person  had  been  induced  to  exercise  his  ability  to  copy  documents 
and  to  sign  his  name.  A  guardian  was  promptly  appointed  by 
the  court,  and  the  patient  speedily  recovered  his  usual  physical 
health.  The  attorney  feared  that  a  fraudulent  will  would  appear 
setting  forth  the  restoration  to  reason  of  the  hopelessly  insane 
person  as  having  occurred  just  before  death.  It  is  in  matters 
concerning  the  management  of  the  estates  of  the  insane,  rather 
than  the  rare  cases  of  the  sane  being  held  in  durance  as  insane, 
that  vigilance  should  be  exercised. 


CHAPTER  IX. 

LEGAL  ADJUDICATIONS  IN  CIVIL  CASES. 

I.  General  considerations. 

^  1.  Rules  applicable  to  civil  cases. 
§  2.  Lucid  intervals. 
II.  Contracts. 

§  1.  Wliat  mental  incapacity  affects. 

§  2.   Jests. 

§  3.  Effect  of  partial  insanity. 

§  4.  Mental  incapacity  combined  icith  fraud. 

III.  Conveyances. 

§  1.  Wliat  mental  incapacity  affects. 

§  2,   Tests. 

§  3.   Time  of  application  of  tests. 

§  4.  Effect  of  partial  insanity. 

§  5.   Mental  incapacity  combined  with  fraud. 

IV.  Proof  to  establish  tnsanitt  with  relation  to  contracts  and 

CONVEYANCES. 

§  1.  Measure  and  weight. 
%  2.  Sufficiency,  how  determined. 
§  3.  Previous  and  subsequent  insanity. 
§  4.  Nature  of  the  act. 
§  5.  Previous  intentions. 
§  6.  Acts  and  conduct. 
§  7.   Conduct  of  others. 
§  8.  Age;  weakness;  disease. 
§  9.  Adjudications  of  unsoundness. 
V.  Wills. 

§  1.  What  insanity  affects — generally. 
§  2.  Age;  weakness;  disease. 
§  3.  Failure  of  memory. 
§  4.  Eccentricity. 

§  5.   Capacity  as  compared  with  the  character  of  the  act. 
§  6.  Delusion — test. 

§  7.  Test  of  capacity  for  criminal  responsibility. 
§  8.   Test  of  capacity  to  contract. 
§  9.   Test  of  capacity  to  transact  ordinary  business. 
§10.   Test  of  capacity  to  understand  the  transaction. 
§11.   Combined  test ;  capacity  to  understand  claims  to  bounty. 
§12.  Test  of  capacity  to  collect,  hold,  and  consider  the  facts. 
§13.  Time  of  application  of  tests. 
§14.  Partial  insanity — defined. 

§15.  What  partial  insanity  affects  testamentary  capacity. 
§16.  Insane  delusions — defined. 
238 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  239 

V.  Wills— Continued. 

§17.  Effect  on  testamentary  capacity. 

§18.  What  delusions  destroy  capacity. 

§19.  Delusions  as  to  the  person  affected. 

§20.  Speculative  beliefs. 

§21.  Moral  insanity. 

§22.  Incapacity  in  connection  with  u%due  influence  or  fraud. 

§23.   Testamentary  capacity — how  determined. 

§24.  Submission  of  the  issue. 

§25.  Proof  to  establish — generally. 

§26.  Previous  and  subsequent  insanity. 

§27.  Testimony  of  attesting  witnesses  and  others  present. 

§28.  Preparation  of  the  will. 

§29.  nationality. 

§30.  Equality  and  justice. 

§31.   Conformity  to  previous  intentions. 

§32.  Subsequent  recognition. 

§33.   Capacity  to  transact  business. 

§34.  Acts  and  conduct. 

§35.  Suicide. 

§36.   Change  of  character  or  disposition. 

§37.  Advanced  age  and  attendant  defects. 

§38.  Physical  condition. 

§39.  Hereditary  insanity. 

§40.  Proof  as  to  partial  insanity  and  delusion. 

§41.  Proof  of  undue  influence  or  fraud  and  incapacity. 

§42.  Proof  of  knowledge,  capacity,  and  intent. 

§43.  Unexecuted  and  nuncupative  wills. 

§44.  Proof  of  lucid  intervals. 

§45.  Revocation  of  wills . 
VI.  Gifts. 

§  1.  Inter  vivos. 

§  2.  Of  a  testamentary  character. 
VII.  Partnership — what  insanity  warrants  dissolution. 
VIII.  Agency. 
IX.  Public  office. 
X.  Marriage. 

§  1.  What  incapacity  affects. 

§  2.   Tests. 

§  3.   The  question  how  determined. 

§  4.  Proof  to  establish  capacity  or  incapacity. 
XI.  Divorce. 

§  1.  Insanity  as  a  ground  for. 

§  2.  Insanity  as  affecting  adultery. 

§  3.  Insanity  as  affecting  desertion. 

§  4.  Insanity  as  affecting  cruelty. 

§  5.  Insanity  as  affecting  the  action. 
XII.  Settlement  or  domicil. 


240  MEDICAL   JURISPRUDENCE    OF    INSANITr. 

XIII.  Statute  of  limitations. 

XIV.  Judgments. 
XV.  Bankruptcy. 

XVI.  Insurance. 

§  1.  Insanity  as  a  "breach  of  warranty. 
§  2.  Homicide  by  insane  act. 
§  3.  Insanity  as  affecting  suicide. 
§  4.  Test  of  consciousness  and  intent. 

§  5.  Test  of  capacity  to  understand  moral  character  of  the  act. 
§  6.   Test  of  responsibility  for  criminal  acts. 

§  7.  Suicide  under  conditions  against  self -destruction,  sane  or  insane. 
§  8.  Suicide  as  affecting  accident  insurance. 
§  9.  Insanity  as  affecting  mutual  insurance. 
§10.  Existence  of  insanity,  how  determined. 
§11.  Proof  as  to  insanity. 
XVII.  Guardianship. 

§  1.  Inquisitions — nature. 
§  2.  What  incapacity  warrants. 
%  3.  Age;  disease;  weakness. 
%  4.  Tests. 

%  5.   The  question  by  whom  determined. 
§  6.  Proof  necessary  to  establish. 
§  7.  Inquisition  as  evidence — as  to  subsequent  acts. 
§  8.  Effect  of  inquisition  on  over-reached  acts. 
§  9.  Effect  of  inquisition  with  respect  to  parties. 
§10.  Evidence  to  rebut  inquisition. 
§11.  When  superseded. 
XVIII.  Right  to  restrain. 

§  1.  General  rules  as  to  confinement. 
§  2.  Discharge  from  confinement. 

I.  General  considerations. 
§  1.  Rules  applicable  to  civil  cases. 

The  rule  •with  relation  to  insanity  that  one  is  not  responsible 
for  his  acts  when  they  are  caused  by  mental  disease  or  unsoundness 
of  mind  which  dethrones  the  reason  and  judgment  with  respect  to 
the  act  in  question  and  destroys  the  power  rationally  to  compre- 
hend its  nature  and  consequences,  and  which  overpowers  his  will 
and  irresistibly  forces  him  to  its  commission,  but  that  he  is  re- 
sponsible where  he  possesses  a  rational  intellect  and  sound  mind, 
and  allows  his  passions  to  escape  control,  though  passion  may  for 
the  time  being  have  driven  reason  from  her  seat  and  usurped  it 
and  urged  him  with  a  force  for  the  time  irresistible,  applies  to 


LEGAL   ADJUDICATIONS    IN    CIVIL   CASES.  241 

civil  as  well  as  criminal  cases.1  But  the  ancient  rule  that  the  law 
avoids  every  act  done  during  a  period  of  lunacy  in  civil  suits, 
even  though  the  act  cannot  be  connected  with  the  influence  of 
insanity,2  has  been  superseded  by  the  more  modern  one  that  the 
law  applies  different  rules  or  tests  under  different  circumstances 
in  considering  questions  involving  insanity,  and  tries  to  ascertain 
whether  the  person  alleged  to  be  insane  is  such  in  respect  to  the 
particular  question  under  investigation.3  And  in  reaching  a  con- 
clusion as  to  the  validity  of  an  act  impeached  upon  the  ground 
of  mental  incapacity,  the  degree  of  capacity  essential  to  its  proper 
execution  is  to  be  considered.4  The  degree  of  deprivation  of 
mind  which  would  be  sufficient  to  avoid  an  act  done,  or  continue 
a  right,  on  the  ground  of  insanity,  need  not  be  total,  but  must 
have  some  relation  to  the  act  done  or  the  matter  to  be  under- 
stood.6 And  mere  proof  of  general  derangement  will  not  sup- 
port a  decree  invalidating  an  act  where  there  is  an  averment  in 
the  answer  responsive  to  the  bill,  that  the  party  was  insane  at  the 
time  of  its  performance.6  So,  the  rules  for  judging  as  to  the  ex- 
istence of  insanity  are  the  same  in  equity  as  in  law.7  Where 
there  is  legal  capacity  there  cannot  be  equitable  incapacity  apart 
from  fraud.8  The  jury  in  a  civil  action  should  not  be  told  that 
the  plea  of  insanity  has  led  to  abuse  in  the  administration  of  jus- 
tice, and  must  be  examined  with  care,  where  the  party  alleged  to 
he  insane  is  not  interested  in  the  result  of  the  litigation.8 

§  2.     Lucid  intervals. 
Acts  performed  by  a  lunatic  during  a  lucid  interval  are  binding 
upon  him.10    And  a  lucid  interval  exists  when  the  mind  is  appar- 

1  Ockendon  v.  Barnes,  43  Iowa,  615. 

?  Evans  v.  Thomas,  2  Hagg.  Eccl.  Eep.  433;  McDonald  v.  McDonald,  14 
Grant,  Ch.  546. 

3  St.  George  v.  Biddeford,  76  Me.  593. 

4  Parker  v.  Marco,  76  Fed.  Eep.  510. 

5  Burnkaru  v.  Mitchell,  34  Wis.  117. 

6  Achey  v.  Stephens,  8  Ind.  411. 

1  Bennett  v.  Vade,  2  Atk.  324;  Edwards  v.  Davenport,  4  McCrary,  21,  20 
Eed.  Eep.  756. 

*  Eippy  v.  Gant,  4  Ired.  Eq.  443. 

9  Marceau  v.  Travelers'  Ins.  Co.  101  Cal.  338. 

10  Beverley's  Case,  4  Coke,  125  a;  Wheeler  v.  Alderson,  3  Hagg.  Eccl. 
Eep.  574;  Duffield  v.  Eobeson,  2  Hare  (Del.)  375;  Aurentz  v.  Anderson, 

16 


242  MEDICAL    JURISPRUDENCE   OF    INSANITY. 

ently  rational  on  all  subjects,  and  no  symptoms  of  delusion  can 
be  called  forth.1  By  a  lucid  interval  is  not  meant  a  clearer  mo- 
ment, or  an  abatement  of  the  violence,  or  relief  from  excessive 
pressure  of  the  mind,  but  an  interval  in  which  the  mind  has 
thrown  off  the  disease  and  recovered  its  general  habits;2 
soundness  of  mind  at  the  time,  there  having  been  preceding 
and  succeeding  unsoundness  of  mind.3  It  must  be  a  restora- 
tion of  the  faculties,  and  not  a  mere  cessation  of  the  violent 
symptoms,  and  must  be  established  by  as  strong  evidence  as  is 
required  to  establish  insanity,4  though  it  need  not  be  a  perfect 
restoration  of  reason  ;  it  is  sufficient  if  it  is  a  restoration  so  far  as 
to  enable  the  party  to  comprehend  and  do  the  act  in  question 
with  reason,  memory,  and  judgment.5  The  judge  would  not  be 
justified  in  finding  a  lucid  interval  where  the  party  labored  under 
a  delusion  which  might  be  brought  forth  at  any  moment  if  the 
subject  of  it  were  alluded  to,  though  in  other  respects  he  was 
perfectly  rational.6 

II.  Contracts. 

§  1.    What  mental  incapacity  affects. 

The  rule  is  generally  stated  that  idiots,  lunatics,  and  persons 
non  compos  mentis  are  incapacitated  to  contract ;  but  the  mental 
incapacity  which  will  justify  setting  aside  a  contract  must  be 
such  as  renders  the  party  incapable  of  understanding  and  pro- 
tecting his  interests.7  And  while  it  was  once  held  that  there  was 
no  distinction  between  the  capacity  required  to  make  different 

3  Pittsb.  310;  Cartwrigkt  v.  Cartwrigkt,  1  Phillm.  Eccl.  Bep.  90;  Norman 
v.  Georgia  Loan  &  T.  Co.  92  Ga.  295;  Kingsbury  v.  Whitaker,  32  La.  Ann. 
1055,  36  Am.  Eep.  278;  Aubert  v.  Aubert,  6  La,  Ann.  104:  Tozer  v.  Satur- 
lee,  3  Grant,  Cas.  162;  Wright  v.  Lewis,  5  Kick.  L.  212,  55  Am.  Dec.  714. 

1  Wkeeler  v.  Alderson,  3  Hagg.  Eccl.  Rep.  571. 

9  Atty.  Gen.  v.  Parntker,  3  Bro.  Ck.  141. 

3  Bannatyne  v.  Bannatyne,  14  Eng.  L.  &  Eq.  581,  16  Jur.  861. 

4Bicketks  v.  Jolliff,  62  Miss.  410;  Ekin  v.  McCraeken,  11  Pkila.  534; 
Aubert  v.  Aubert,  6  La.  Ann.  104. 

s  Frazer  v.  Frazer,  2  DeU.  Ck.  260;  Bicketts  v.  Jolliff,  62  Miss.  410; 
Ekin  v.  McCraeken,  11  Pkila.  534;  Creagk  v.  Blood,  8  Ir.  Eq.  435.  And 
see  Sombre  v.  Solarolii,  1  Deane  &  S.  110. 

6  Creagk  v.  Blood,  8  Ir.  Eq.  435. 
For  Dr.  Clevenger's  discussion  on  this  subject,  see  Lucid  Intervals, 
Ckap.  VHL 

1  Perry  v.  Pearson,  135  HI.  218. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  243 

kinds  of  contracts,  and  that  legal  capacity  to  make  a  contract  was 
capacity  to  make  all  contracts,1  the  rule  would  now  seem  to  be 
settled  that  a  person  may  be  of  unsound  mind  and  incapable  of 
transacting  business  of  magnitude  or  of  some  degree  of  intricacy, 
and  yet  capable  of  binding  himself  with  reference  to  simple 
matters,2  a  higher  degree  of  mental  capacity  being  required  for 
an  exchange  of  lands,  or  to  make  a  complicated  contract,  than  for 
the  making  of  a  valid  will.3  And  a  complaint  to  annul  a  con- 
tract upon  the  ground  of  unsoundness  of  mind  and  mental  inca- 
pacity to  transact  business  is  insufficient  where  it  does  not  allege 
the  kind  of  business  the  party  was  unable  to  transact.4  So,  where 
incapacity  to  contract  from  defect  of  mind  is  alleged,  the  ques- 
tion is  not  whether  the  person's  mind  is  impaired,  or  whether  he 
is  afflicted  with  any  form  of  insanity,  but  whether  the  powers  of 
his  mind  have  been  so  far  affected  as  to  render  him  incapable  of 
transacting  business  like  that  in  question.6  That  a  person's  intel- 
lectual capacity  is  below  the  average  of  mankind  does  not  alone 
furnish  sufficient  ground  for  setting  aside  his  contracts  ;6  and 
mere  mental  weakness  resulting  from  age,  sickness,  or  otherwise, 
not  amounting  to  inability  to  comprehend  the  contract  in  ques- 
tion, furnishes  no  ground  for  equitable  interference  in  the  ab- 
sence of  imposition  or  undue  influence.7     Nor  will  a  contract  be 

1  Hale  v.  Brown,  11  Ala.  87. 

2  Seerley  v.  Sater,  68  Iowa,  376. 

3  Turner  v.  Houpt,  53  N.  J.  L.  526;  Southern  Tier  Masonic  Belief  Asso. 
v.  Laudenbach,  5  N.  Y.  Supp.  501. 

4  Fulwider  v.  Ingels,  87  Ind.  414. 

6  Dennett  v.  Dennett,  44  N.  H.  531,  84  Am.  Dec.  97. 

6  Mann  v.  Betterly,  21  Vt.  326. 

1  Juzan  v.  Toulmin,  9  Ala.  662,  44  Am.  Dec.  448;  Hemingway  v.  Cole- 
man, 49  Conn.  390,  44  Am.  Bep.  243;  Jones  v.  Thompson,  5  Del.  Ch.  374; 
Maddox  v.  Simmons,  31  Ga.  512;  Pickerell  v.  Morss,  97  HI.  220;  Miller  v. 
Craig,  36  HI.  109;  Graham  v.  Castor,  55  Ind.  559;  Harris  v.  Wamsley,  41 
Iowa,  671;  DesMoines  Nat.  Bank  v.  Chisholm,  71  Iowa,  675;  Wilson  v. 
Oldham,  12  B.  Mon.  55;  Davis  v.  Phillips,  85  Mich.  198;  Trimbo  v. 
Trimbo,  47  Minn.  389;  Simon  ton  v.  Bacon,  49  Miss.  582;  Keithley  v. 
Keithley,  85  Mo.  217;  Hall  v.  Knappenberger  (Mo.)  12  West.  410;  Dennett 
v.  Dennett,  44  N.  H.  531,  84  Am.  Dec.  97;  Bippy  v.  Gant,  4  Ired.  Eq.  443; 
Aiman  v.  Stout,  42  Pa.  114;  Graham  v.  Pancoast,  30  Pa.  89;  Nacev.  Boyer, 
30  Pa.  99;  Dodds  v.  Wilson,  3  Brev.  389;  Dodds  v.  Wilson,  1  Tread.  448; 
Kilgore  v.  Cross,  1  Fed.  Bep.  578;  Barker  v.  Northern  P.  B.  Co.  65  Fed. 
Bep.  460;  Gartside  v.  Isherwood,  1  Bro.  C.  C.  560. 


2ii  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

set  aside  on  account  of  the  imbecility  of  a  party  thereto  where 
there  is  not  an  essential  privation  of  the  reasoning  faculties  or  an 
incapacity  to  understand  and  act  with  discretion  in  the  ordinary 
affairs  of  life.1  And  the  fact  that  the  mind  of  a  party  to  a  con- 
tract had  become  impaired  is  no  defense  to  the  other  party 
thereto  as  against  the  contract,  where  he  was  fully  competent  to 
make  contracts  and  attend  to  his  own  business.2  But  weakness 
of  mind  of  the  party  should,  be  taken  into  consideration  as  a  cir- 
cumstance in  determining  whether  the  party  should  be  released 
from  the  performance  of  a  contract,  or  whether  or  not  it  should 
be  enforced.3  And  relief  does  not  depend  upon  the  question 
whether  the  precise  degree  of  imbecility  charged  is  proved ;  imbe- 
cility may  be  proved  and.  acted  upon  by  the  court  though  it  is 
not  of  the  degree  charged.4  The  provisions  of  the  Indiana  stat- 
ute that  every  contract,  sale,  or  conveyance  of  any  person  while 
of  unsound  mind  shall  be  void,  is  applicable  only  to  persons  who 
had  been  found  non  compos  mentis  in  the  manner  prescribed  by 

law.5 

§2.   Tests. 

The  test  of  capacity  to  make  a  contract  where  no  fraud  appears 
is  whether  the  person  whose  act  is  challenged  possesses  sufficient 
mind  to  reasonably  understand  the  nature  and  effect  of  the  act 
he  is  doing  or  the  business  he  is  transacting  ;6  whether  he  was 
capable  of  transacting  ordinary  business,  and.  of  acting  rationally 
in  the  ordinary  affairs  of  life  ;7  whether  he  has  reason,  memory, 

1  Somers  v.  Pumphrey,  24  Ind.  231;  Farnam  v.  Brooks,  9  Pick.  212; 
Cain  v.  Warford,  33  Md.  23;  Shoulters  v.  Allen,  51  Mich.  529;  Johnson  v. 
Phifer,  <?  Neb.  401;  Mulloy  v.  Ingalls,  4  Neb.  115;  Missouri  P.  E.  Co.  v. 
Brazzill,  72  Tex.  233. 

2  Harmon  v.  Harmon,  51  Ped.  Pep.  113. 
3BeUer  v.  Jones,  22  Ark.  92. 

4  Doughty  v.  Doughty,  7  N.  J.  Eq.  227. 

5  Wilder  v.  Weakley,  34  Ind.  181;  Freed  v.  Brown,  55  Ind.  310. 

6  Baldwin  v.  Dunton,  40  HI.  189 ;  Perry  v.  Pearson,  135  111.  218  ;  Sands 
v.  Potter,  59  HI.  App.  206 ;  Hovey  v.  Chase,  52  Me.  304,  83  Am.  Dec.  514 ; 
Bond  v.  Bond,  7  Allen,  13;  Davis  v.  Phillips,  85  Mich.  198;  Trim  bo  v. 
Trimbo,  47  Minn.  389  ;  Dennett  v.  Dennett,  44  N.  H.  531,  84  Am.  Dec.  97 ; 
HUl  v.  Day,  34  N.  J.  Eq.  150  ;  Lozear  v.  Shields,  23  N.  J.  Eq.  509 ;  Ed- 
wards v.  Davenport,  20  Fed.  Bep.  756. 

"  Perry  v.  Pearson,  135  HI.  218  ;  Somers  v.  Pumphrey,  24  Ind.  231 ; 
Moffit  v.  Witherspoon,  10  Hed.  L.  185. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES. 


245 


and  will  enough  to  do  the  act  in  question  freely  and  intelligently1 
and  Math  a  full  knowledge  of  his  rights  and  of  the  consequences 
of  the  act.2  And  a  person  who  is  capable  of  reasoning  correctly 
concerning  the  ordinary  affairs  of  life,  and  of  contemplating  and 
understanding  the  consequences  which  usually  accompany  ordi- 
nary acts,  and  of  transacting  business  like  that  in  question,  will 
be  held  compos  mentis  and  bound  by  his  contracts,3  while  a  con- 
tract may  be  avoided  when  made  by  a  person  whose  mind  was  so 
impaired  as  to  destroy  his  capacity  to  understand  the  nature  and 
effect  of  the  transaction,4  or  where  he  was  mentally  incapable  of 
managing  his  own  affairs  or  property.6  A  party  is  not  bound  by 
a  contract  entered  into  when  his  mental  condition  was  such  as  to 
preclude  any  fair  and  reasonable  exercise  of  his  reasoning  facul- 
ties, though  there  was  not  a  total  eclipse  of  his  mind.6  Thus,  a 
contract  of  sale  in  which  one  of  the  parties  is  without  capacity 
to  comprehend  fully  the  value  of  the  property  sold  and  the  na- 
ture and  terms  of  the  contract,  though  in  legal  form,  is  voidable/ 
And  the  test  of  capacity  in  an  action  upon  a  contract  for  a  sale 
of  goods  by  a  person  alleged  to  be  a  lunatic,  which  was  invalid 
for  noncompliance  with  the  statute  of  frauds,  in  which  a  subse- 
quent delivery  is  relied  upon  to  validate  it,  is  whether  the  seller 
was  competent  to  make  the  bargain,  and  if  so  whether  his  com- 
petency continued  so  as  to  enable  him  to  complete  and  perfect  it 
by  delivery.8  So,  an  assignment  of  an  expectancy  will  be  set 
aside  where  the  mind  of  the  assignor  was  so  impaired  by  age  that 
though  she  understood  its  effect  she  did  not  understand  its  nature, 
and  was  not  able  to  distinguish  her  own  debts  from  those  of  oth- 

1  Hiett  v.  Sbull,  36  W.  Va.  561 ;  Kelly  v.  McGuire,  15  Ark.  555  ;  Taylor 
v.  Patrick,  1  Bibb,  168. 

2  Kelly  v.  McGuire,  15  Ark.  555. 

3  Baldwin  v.  Dunton,  40  111.  181 ;  Bebrens  v.  McKenzie,  23  Iowa,  333,  92 
Am.  Dec.  428 ;  Young  v.  Stevens,  48  N.  H.  133,  2  Am.  Bep.  202,  97  Am. 
Dec.  592. 

4  Baynett  v.  Baluss,  54  Micb.  469  ;  Nicbols  &  S.  Co.  v.  Hardman,  62  Mo. 
App.  153 ;  Hiett  v.  Sbull,  36  W.  Ya.  561. 

5  Pratber  v.  Naylor,  1  B.  Mon.  244 ;  Young  v.  Stevens,  48  N.  H.  133,  2 
Am.  Bep.  202,  97  Am.  Dec.  597. 

e  Kilgore  v.  Cross,  1  Fed.  Bep.  578. 

1  Hill  v.  McLaurin,  28  Miss.  288. 

8  Mattbiessen  v.  McMabon,  38  N.  J.  L.  536. 


246 


MEDICAL    JURISPRUDENCE    OF    INSANITY. 


ers,  or  to  understand  whether  or  not  she  was  equitably  required 
to  pay  them  ;*  and  an  instruction  in  a  contract  action,  that  one 
who  has  enough  mind  and  reason  to  clearly  and  fully  understand 
the  nature  and  consequences  of  his  act  is  to  be  considered  sane, 
is  not  objectionable  because  of  the  omission  to  state  that  one  who 
lacks  that  capacity  is  to  be  considered  insane,  as  that  would  be 
understood.2  But  an  instruction  that  one  is  disqualified  to  con- 
tract when  from  old  age,  infirmity,  or  other  misfortune  he  is  re- 
duced to  a  state  of  mental  imbecility  which  disqualifies  him  from 
the  proper  exercise  of  his  reasoning  faculties  and  the  ordinary 
prudential  management  of  his  affairs  is  too  indefinite  and  uncer- 
tain.3 "Where  a  contract  is  sought  to  be  avoided  because  of  in- 
sanity of  a  party,  the  inquiry  is  whether  or  not  he  was  sane  at 
the  time  it  was  made.4  And  the  question  whether  a  party  was 
of  unsound  mind  and  incapable  of  understanding  and  deciding 
upon  the  terms  of  a  contract  should  be  submitted  to  the  jury  in 
general  terms.6  Delusion,  consisting  of  belief  in  things  as  real 
which  do  not  in  fact  exist,  or  which  a  rational  person  would  not 
believe,  is  not  necessarily  the  true  and  legal  test  of  insanity.6 

§  3.  Effect  of  partial  insanity. 

A  monomaniac  is  not  a  responsible  agent  where  he  parts  with 
his  property  under  the  influence  of  his  mania.7  And  a  transfer 
by  a  father  of  his  real  estate  to  his  children  will  be  set  aside 
where  he  labored  under  the  delusion  that  he  could  control  the 
elements,  asserting  power  in  himself  to  recall  from  death,  and 
constantly  exhibited  indications  of  mental  infirmity.8  But  the' 
fact  of  insanity  cannot  be  set  up  to  avoid  a  business  transaction 
where  it  was  of  such  a  character  as  not  to  affect  capacity  to  trans- 

1  King  v.  Davis,  60  Vt.  502. 

2  Norman  v.  Georgia  Loan  &  T.  Co.  92  Ga.  295. 

3  Prather  v.  Noyes,  1  B.  Mon.  244. 

4  Emery  v.  Hoyt,  46  HI.  258  ;  Fay  v.  Burditt,  81  Ind.  433,  42  Am.  Bep. 
142. 

1  Wright  v.  Wright,  139  Mass.  177. 

6  Wright  v.  Wright,  139  Mass.  177. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Senility,  Senile  De- 
mentia, Imbecility ,  Idiocy,  Recurrent  Insanity. 

7  Alston  v.  Boyd,  6  Humph.  504. 

8  Young  v.  Young,  10  Grant,  Ch.  365. 


LEGAL   ADJUDICATIONS    IN    CIVIL    CASES.  24:7 

act  business.1  And  evidence  of  excitement  of  mind  touching 
religion  which  tends  toward  monomania  is  not  sufficient  to  justify 
setting  aside  a  sale  of  property  made  by  a  person  thus  afflicted.' 
And  belief  upon  the  part  of  a  man  that  his  wife  was  bewitched3 
or  that  he  himself  was  bewitched4  does  not  render  him  incompe- 
tent to  contract.  Nor  will  the  mere  existence  of  a  delusion  in 
the  mind  of  a  person  making  a  contract,  though  connected  with 
the  subject-matter,  be  alone  sufficient  to  avoid  it ;  it  is  a  question 
for  the  jury  whether  the  delusion  in  fact  affected  it.5 

§  4.  Mental  incapacity  combined  with  fraud. 

While  mere  weakness  of  mind  is  not  of  itself  sufficient  ground 
to  set  aside  a  contract  it  is  a  material  ingredient  of  the  question 
whether  the  contract  was  obtained  by  fraud,  imposition,  or  undue 
influence,6  and  is  an  item  in  the  proof  of  fraud,7  and  may  become 
a  controlling  circumstance  when  connected  with  other  facts,  tend- 
ing to  establish  fraud  in  giving  character  to  the  transaction.8 
Thus,  a  contract  obtained  by  undue  influence  or  advantage  taken 
of  incompetency,  weakness  of  understanding,  or  clouded  or  feeble 
faculties,  will  be  set  aside,9  and  will  not  be  decreed  to  be  carried 
into  execution.10    Taking  advantage  of  the  mental  imbecility  of 

1  Searle  v.  Galbraith,  73  111.  269. 

2  Lozear  v.  Shields,  23  N.  J.  Eq.  509. 

3  Johnson  v.  Johnson,  10  Ind.  387. 

4  McDonald  v.  McDonald,  16  Grant,  Ch.  37. 
B  Jenkins  v.  Morris,  L.  E.  14  Ch.  Div.  674. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Partial  Insanity, 
Monomania,  Paranoia,  Spiritualism. 

6  Juzan  v.  Toulmin,  9  Ala.  662,  44  Am.  Dec.  448;  Jones  v.  Thompson,  5 
Del.  Ch.  374;  Dennett  v.  Dennett,  44  N.  H.  531,  84  Am.  Dec.  97;  Nace  v. 
Boyer,  30  Pa.  99;  Tally  v.  Smith,  1  Coldw.  290;  EUis  v.  Mathews,  19 
Tex.  390,  70  Am.  Dec.  353. 

1  Jackson  v.  King,  4  Cow.  207,  15  Am.  Dec.  354,;  Milner  v.  Turner,  4 
T.  B.  Mon.  244;  Galpin  v.  Wilson,  40  Iowa,  90. 

s  Darnell  v.  Kowland,  30  Ind.  342;  Jones  v.  Thompson,  5  Del.  Ch.  374. 

9  "Wray  v.  "Wray,  32  Ind.  126;  Harris  v.  Wamsley,  41  Iowa,  671;  Wilson 
v.  Oldham,  12  B.  Mon.  55;  Farnam  v.  Brooks,  9  Pick.  212;  Schoellkamer 
v.  Kometsch,  26  Or.  394;  Hunt  v.  Moore,  2  Pa.  105;  Tally  v.  Smith,  1 
Coldw.  290;  Birdsong  v.  Birdsong,  2  Head,  289;  Sentance  v.  Poole,  3  Car. 
&  P.  1;  Gartside  v.  Isherwood,  1  Bro.  C.  C.  590. 

10  Green  v.  Wood,  2  Vern.  636;  Dunnage  v.  White,  1  Swanst.  137. 


248  MEDICAL    JDKlSi'-K.CDENCE    OF    INSANITY. 

another  to  procure  from  him  a  bargain  manifestly  unequal  is  a 
fraud  in  equity  where  pretenses  are  used  which  are  not  intended 
to  be  carried  out.1  But  to  warrant  the  cancelation  of  a  contract 
there  must  have  been  such  a  degree  of  mental  weakness  as  to 
render  the  party  unable  to  guard  himself  against  imposition  or  to 
resist  importunity  or  undue  influence,2  and  his  position  and  the 
nature  of  the  transaction  must  have  been  such  as  to  justify  the 
.  conclusion  that  he  had  not  exercised  a  deliberate  judgment  but 
had  been  imposed  upon,  circumvented,  or  overcome  by  cunning, 
artifice,  or  undue  influence,3  which  would  not  have  prevailed 
against  him  if  he  had  had  the  free  use  and  exercise  of  his  de- 
liberate judgment.4  And  the  question  with  relation  to  a  contract 
between  a  person  of  weak  understanding  and  another  standing  in 
a  confidential  relation  with  him  is  not  whether  the  bargain  was 
bad  and  disadvantageous,  but  whether  he  was  led  into  it  by  un- 
fair means,  and  whether  the  other  had  obtained  an  improper 
advantage,*  the  age  or  capacity  of  a  person  and  the  nature  of  the 
benefit  being  of  but  little  importance.6  And  the  cause  of  mental 
weakness  constituting  an  element  in  fraud  is  immaterial.7  And 
an  agreement  showing  upon  its  face  that  the  parties  did  not  un- 
derstand their  rights  or  the  nature  of  the  transaction  will  not  be 
enforced  against  one  who  surrendered  an  unimpeachable  title 
without  consideration,  where  he  was  grossly  ignorant  and  subject 
to  habitual  intoxication  and  liable  to  imposition,  though  there 
was  no  direct  proof  of  fraud  or  undue  influence  and  he  had 
acquiesced  in  it  for  five  years.8     A  mere  suggestion  of  weakness, 

1  Keeble  v.  Cummins,  5  Hayw.  43. 

2  Kelly  v.  McGuire,  15  Ark.  555;  Baldwin  v.  Diinton,  40  111.  189;  Cole- 
man v.  Frazer,  3  Bush,  300;  Rippy  v.  Gant,  4Ired.  Eq.  443;  Tally  v.  Smith, 
1  Coldw.  290;  Johnson  v.  Chadwell,  8  Humph.  145. 

3  Kilgore  v.  Cross,  1  Fed.  Rep.  578;  Taylor  v.  Atwood,  47  Conn.  498; 
Somes  v.  Skinner,  16  Mass.  348;  Connelly  v.  Fisher,  3  Term.  Ch.  382; 
Tally  v.  Smith,  1  Coldw.  290. 

4  Wray  v.  Wray,  32  Ind.  126;  Somes  v.  Skinner,  16  Mass.  348. 

5  Simonton  v.  Bacon,  49  Miss.  582;  Storrs  v.  Scougale,  48  Mich.  387; 
Rhodes  v.  Bate,  L.  R.  1  Ch.  252. 

6  Rhodes  v.  Bate,  L.  R.  1  Ch.  252. 

1  Jones  v.  Thompson,  5  Del.  Ch.  374.     But  see  Tracey  v.  Sacket,  1  Ohio 
St.  54,  59  Am.  Dec.  610. 
8  Dunnage  v.  White,  1  Swanst.  137. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  241> 

nowevcr,  will  not  alone  avoid  a  contract ;  it  must  appear  that  the 
other  party  had  used  some  undue  or  improper  means  to  draw  the 
weak-minded  party  into  it.1  And  fraud  will  not  be  presumed 
from  the  mere  making  of  a  contract  even  by  a  man  feeble  in 
mind  and  body.8  Nor  does  the  old  age  of  a  party  justify  a 
presumption  that  he  was  imposed  upon.3  Nor  will  the  fact  that 
one  of  the  parties  was  old  and  the  grandfather  and  employer  of 
the  other  impose  upon  the  latter  the  burden  of  proving  affirma- 
tively that  no  deception  was  practised  or  undue  influence  used.4 
And  fraud  is  not  to  be  inferred  from  the  mere  fact  that  a  person 
weak  in  mind  and  body  indorses  a  note  for  accommodation.6 

But  mental  imbecility,  though  not  amounting  to  absolute  dis- 
qualification upon  the  part  of  a  party  to  a  contract,  subjects  it  to 
strict  examination,  and  the  utmost  fairness  will  be  insisted  upon.8 
And  circumstances  indicating  overinfluence  and  advantage  im- 
properly taken  give  rise  to  a  presumption  of  fraud.7  And  an  in- 
ference that  a  contract  was  obtained  by  fraud,  circumvention,  or 
undue  influence  arises  when  it  was  rash  and  improvident  and 
made  with  a  person  of  weak  understanding,8  or  from  a  contract 
made  with  knowledge  of  the  other's  incapacity.9  And  where  a 
transaction  appears  to  be  wholly  against  the  interests  of  a  person 
of  weak  mind,  to  the  advantage  of  the  other  party,  or  wholly 
without  consideration,  the  court  will  require  clear  proof  of  a  com- 
prehension of  its  true  nature,  character,  and  effect,  though  the 
weakness  does  not  amount  to  a  total  incapacity.10  So,  a  contract 
made  by  a  person  of  weak  mind  standing  in  a  confidential  rela- 

1  Simonton  v.  Bacon,  49  Miss.  582.  And  see  Orr  v.  Pennington  (Va.)  2-1 
S.  E.  928. 

2  Wirebach  v.  First  Nat.  Bank,  97  Pa.  549,  39  Am.  Bep.  821. 

3  Lewis  v.  Pead,  1  Ves.  Jr.  19. 

4  Cowee  v.  Cornell,  75  N.  Y.  91,  31  Am.  Bep.  428. 

5  Wirebach  v.  First  Nat.  Bank,  97  Pa.  513,  39  Am.  Bep.  821. 

6  Cruise  v.  Christopher,  5  Dana,  181 ;  Chevalier  v.  Whatley,  12  La.  Ann. 
651;  Mason  v.  Dunbar,  43  Mich.  110,  38  Am.  Bep.  201;  Martin  v.  Baker 
(Mo.)  36  S.  W.  369. 

7  Chevalier  v.  Whatley,  12  La.  Ann.  651. 

8  Juzan  v.  Toulmin,  9  Ala.  662,  44  Am.  Dec.  448;  Ellis  v.  Mathews,  19 
Tex.  390,  70  Am.  Dec.  353;  TaUy  v.  Smith,  1  Coldw.  290. 

9  Jones  v.  Perkins,  5  B.  Mon.  222. 

10  Jones  v.  Thompson,  5  Del.  Cb.  374;  Morton  v.  Morton  (N.  J.)  7 
Cent.  131. 


250  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

tion  with  the  other  party  will  be  presumed  to  be  against  justice.1 
And  the  burden  rests  with  the  latter  to  show  that  the  transaction 
was  fair,  and  that  the  other  understood  the  nature  of  his  act.* 
So,  where  great  weakness  of  mind  concurs  with  gross  inadequacy 
of  consideration  or  circumstances  of  suspicion  the  contract  will 
be  presumed  to  have  been  brought  about  by  undue  influence,3 
especially  when  accompanied  by  an  abuse  of  confidence."  And 
such  a  transaction  casts  the  burden  of  proof  upon  the  party 
obtaining  the  contract  to  show  that  the  bargain  was  entered  into 
carefully,  deliberately,  and  with  knowledge  of  all  the  circum- 
stances connected  with  it,5  and  will  not  be  upheld  when  there  is 
nothing  to  show  that  it  was  understood  by  or  explained  to  him.8 

III.  Conveyances. 
§  1.  What  insanity  affects. 
The  general  rule  universally  laid  down,  that  a  deed  or  other 
conveyance  of  an  insane  person  is  void  or  voidable,  does  not  refer 
to  insanity  in  its  technical  meaning.7  And  a  deed  may  be  up- 
held in  a  proper  case  without  reference  to  the  abstract  question 
whether  the  grantor  was  sane  or  insane.8  The  mere  fact  that  the 
mind  of  the  grantor  was  to  some  extent  impaired  is  not  sufficient 

1  Jacox  v.  Jacox,  40  Mich.  473,  29  Am.  Eep.  547;  Simonton  v.  Bacon,  49 
Miss.  582;  Hay  dock  v.  Hay  dock,  34  N.  J.  Eq.  570,  38  Am.  Eep.  385;  Mar- 
tin v.  Baker  (Mo.)  36  S.  W.  369. 

2  Jacox  v.  Jacox,  40  Mich.  473,  29  Am.  Eep.  547;  Haydock  v.  Haydock, 
34  N.  J.  Eq.  570,  38  Am.  Eep.  385;  Morton  v.  Morton  (N.  J.)  7  Cent.  134; 
Selden  v.  Myers,  61  U.  S.  20  How.  506,  15  L.  ed.  976. 

3  Cruise  v.  Christopher,  5  Dana,  181;  Jones  v.  Thompson,  5  Del.  Ch. 
374;  Tracey  v.  Sacket,  1  Ohio  St.  54,  59  Am.  Dec.  610;  Mann  v.  Betterly,  21 
Yt.  326;  Fishburne  v.  Ferguson,  84  Ya.  87;  Turner  v.  Utah  Title  Ins.  &  T. 
Co.  10  Utah,  61;  Turner  v.  Union  National  Bank,  10  Utah,  77;  Peacock  v. 
Evans,  16  Yes.  Jr.  512;  Longmate  v.  Ledger,  2  Giff.  157;  Davies  v.  Cooper, 
5  Myl.  &  C.  276.  And  see  Gates  v.  Cornett,  72  Mich.  435;  CockeU  v.  Tay- 
lor, 15  Beav.  115. 

4Maddoxv.  Simmons,  31  Ga.  512;  CadwaUader  v.  West,  48  Mo.  483; 
Bichards  v.  Pitts,  124  Mo.  602;  Gartside  v.  Isherwood,  1  Bro.  C.  C.  560. 
6  Clark  v.  Malpas,  31  Beav.  80. 

6  Hadward  v.  Campbell,  166  Pa.  365. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see   Undue  Influence. 

7  Boggess  v.  Boggess,  127  Mo.  305. 

*  Jones  v.  Jones,  43  N.  Y.  S.  E.  434. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  251 

to  invalidate  his  deed.1  But  to  constitute  such  unsoundness  of 
mind  as  will  avoid  a  deed  it  is  not  necessary  that  the  grantor 
should  have  been  without  a  glimmer  of  reason  or  that  the  un- 
soundness should  have  amounted  to  idiocy' in  the  strict  legal 
sense.2  And  the  same  rule  will  apply  to  an  alienation  of  land  by 
one  who  was  of  sound  memory  before  he  became  non  compos 
mentis  as  applies  to  an  alienation  by  an  idiot.3 

Mere  imbecility  or  weakness  of  the  mind  of  a  grantor,  how- 
ever, will  not  avoid  his  deed.4  The  mere  fact  that  the  mental 
powers  of  the  grantor  had  been  somewhat  impaired  by  age  or 
disease  is  not  sufficient  to  invalidate  his  deed  where  he  retains 
full  comprehension  of  the  meaning,  design,  and  effect  of  his  acts.5 
Nor  will  mere  physical  weakness  of  the  grantor,  however  great, 
affect  the  validity  of  his  deed  in  the  absence  of  proof  of  mental 
incapacity.6  And  an  allegation  that  a  grantor  was  of  weak  and 
feeble  intellect,  and  incapable  of  taking  care  of  himself,  will  not 
warrant  an  issue  as  to  his  capacity  to  make  a  deed,7  though  a  less 

1  Guild  v.  Warne,  149  HI.  105 ;  Kimball  v.  Cuddy,  117  HI.  213  ;  Burn- 
Lam  v.  Kidwell,  113  111.  425 ;  English  v.  Porter,  109  HI.  285 ;  Wiley  v. 
Ewalt,  66  HI.  26  ;  Lindsey  v.  Lindsey,  50  HI.  79,  99  Am.  Dec.  489  ;  Stone 
v.  Wilbern,  83  111.  105 ;  Hovey  v.  Hobson,  55  Me.  256  ;  Hovey  v.  Chase, 
52  Me.  305,  83  Am.  Dec.  514;  Cutler  v.  Zollinger,  117  Mo.  92;  Sprague 
v.  Duel,  11  Paige,  480  ;  Buckey  v.  Buckey,  38  W.  Va.  168. 

2  Ball  v.  Mannin,  3  Bligh,  N.  S.  1,  1  Dow  &  C.  880. 

3  Beverley's  Case,  4  Coke,  125a. 

4  Somers  v.  Pumphrey,  24  Ind.  231 ;  "Wiley  v.  Ewalt,  66  HI.  26  ;  Burt  v. 
Cjuisenberry,  132  HI.  385  ;  Willemin  v.  Dunn,  93  HI.  511  ;  Miller  v.  Craig, 
36  HI.  109 ;  Van  Horn  v.  Keenan,  28  111.  445 ;  Des  Moines  Nat.  Bank  v. 
Chisholme,  71  Iowa,  675  ;  Corbit  v.  Smith,  7  Iowa,  60,  71  Am.  Dec.  431 ; 
Marmon  v.  Marmon,  47  Iowa,  121  ;  Darby  v.  Hayford,  56  Me.  246  ;  Dewey 
v.  Allgire,  37  Neb.  6  ;  Hay  v.  Miller,  48  Neb.  156  ;  Johnson  v.  Phifer,  6 
Neb.  401  ;  MuUoy  v.  Ingalls,  4  Neb.  115 ;  Davren  v.  White,  42  N.  J.  Eq. 
569;  Odell  v.  Buck,  21  Wend.  142;  Lawrence  v.  Willis,  75  N.  C.  471; 
Smith  v.  Beatty,  2  Hed.  Eq.  456,  40  Am.  Dec.  435  ;  Aiman  v.  Stout,  42 
Pa.  114  ;  Anthony  v.  Hutchins,  10  R.  I.  165  ;  Beville  v.  Jones,  74  Tex. 
148  ;  Miller  v.  Butledge,  82  Va.  863. 

5  Guild  v.  Warne,  149  HI.  105;  Francis  v.  Wilkinson,  147  HI.  370; 
Guild  v.  HuU,  127  IU.  523 ;  Kimball  v.  Cuddy,  117  111.  313 ;  Wiley  v. 
Ewalt,  66  HI.  26 ;  Lindsey  v.  Lindsey,  50  111.  79,  99  Am.  Dec.  489  ;  Physio- 
Medical  CoUege  v.  Wilkinson,  108  Ind.  314 ;  Cutler  v.  Zollinger,  117  Mo. 
92. 

6  Ernes  v.  Ernes,  11  Grant,  Ch.  325 ;  Peabody  v.  Kendall,  145  HI.  519. 
'Lawrence  v.  Willis,  75  N.  C.  471. 


252  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

degree  of  proof  of  mental  incapacity  and  undue  influence  is  re- 
quired to  set  aside  a  deed  of  a  feeble  old  man  ninety  years  of 
age  than  in  case  of  a  younger  person.1 

§  2.  Tests. 

It  has  been  held  that  the  law  does  not  undertake  to  measure 
the  different  degrees  of  power  of  the  human  intellect  or  to  dis- 
tinguish between  them  when  the  power  to  think  and  reason 
exists,  but  that  it  draws  a  line  between  sanity  and  insanity,  or,  in 
other  words,  between  the  presence  and  absence  of  reason,2  and 
that  to  render  a  deed  invalid  an  entire  loss  of  understanding 
must  be  shown,3  and  that  imbecility  not  amounting  to  idiocy  or  a 
total  want  of  understanding  is  not  sufficient  to  avoid  a  deed 
where  no  fraud  was  used/  and  that  the  test  of  mental  capacity 
to  make  a  deed  is  not  whether  the  person  had  sufficient  under- 
standing to  know  what  he  was  doing,  but  whether  he  had  the 
right  use  of  his  reason.5  But  this  rule  has  been  superseded,  and 
the  rule  has  been  stated  generally  to  be  that  one  who  is  capa- 
ble of  transacting  ordinary  business  and  of  acting  rationally  in 
the  ordinary  affairs  of  life  has  sufficient  mental  capacity  to  dis- 
pose of  property  by  deed.6  And  an  essential  privation  of  the 
reasoning  faculties  incapacitates  the  party  from  acting  with  dis- 
cretion in  such  affairs.7  "Within  this  rule  buying  and  selling 
property,  settling  accounts,  collecting  and  paying  out  money,  or 
borrowing  or  loaning  money,  constitutes  the  transaction  of  ordi- 
nary business  the  capacity  to  do  which  shows  sufficient  capacity 
to  dispose  of  property  by  deed.'     And  the  party  may  not  have 

1  Smith  v.  Smith,  60  Wis.  329. 

2  Somers  v.  Punrphrey,  24  Ind.  231 ;  Jackson  v.  King,  4  Cow.  207,  15 
Am.  Dec.  354. 

s  Jackson  t.  King,  4  Cow.  207,  15  Am.  Dec.  354. 

4  OdeU  t.  Buck,  21  Wend.  142. 

5  Hale  v.  Hills,  8  Conn.  39. 

6  Francis  v.  Wilkinson,  147  111.  370;  Peabody  v.  Kendall,  145  HI.  519  r 
Schneider  v.  Manning,  121  HI.  376;  English  v.  Porter,  109  HI.  285:  Tit- 
comb  v.Yantyle,  84  HI.  371;  Stone  v.  Wilbern,  83  HI.  105;  Hovey  v.  Chase, 
52  Me.  305,  83  Am.  Dec.  514;  Ball  v.  Mannin,  3  Bligh,  N.  S.  1,  1  Dow  & 
C.  880. 

7  Baymond  v.  Wathen,  142  Ind.  367. 
6  Francis  v.  Wilkinson,  147  HL  370. 


LEGAL   ADJUDICATIONS    IN    CIVIL    CASES.  25 '3 

sufficient  intelligence  to  carry  on  business  in  a  proper  and  pru- 
dent manner.1 

A  large  majority  of  the  cases,  however,  refer  the  test  to  the 
particular  act  in  question  making  the  degree  of  capacity  required 
to  conform  to  the  degree  involved  in  its  performance,  and  stating 
the  test  of  capacity  to  be  whether  the  grantor  possessed  suffi- 
cient ability  to  understand  in  a  reasonable  manner  the  nature 
and  effect  of  his  act  or  of  the  business  he  was  transacting,2  and 
^the  legal  consequences  likely  to  flow  from  it,3  and  the  extent 
and  value  of  his  property  and  the  nature  and  extent  and  the 
claims  of  the  grantees  and  others,4  and  to  know  that  he  was 
thereby  transferring  title  to  the  grantee,5  and  whether  he  was 
capable  of  understanding  and  protecting  his  own  interests.8 
Within  this  rule  more  capacity  is  required  to  make  a  valid  deed 

1  Hovey  v.  Chase,  52  Me.  305,  83  Am.  Dec.  514 

5  Doe,  Guest,  v.  Beeson,  2  Houst.  246;  Jones  v.  Thompson,  5  Del.  Ch. 
374;  Frazer  v.  Frazer,  2  Del.  Oh.  260;  Dicken  v.  Johnson,  7  Ga.  484; 
Kimball  v.  Cuddy,  117  HI.  213;  Titcomb  v.  Vantyle,  84  IU.  371;  Burt  v. 
Quisenberry,  132  IU.  385;  Guild  v.  HuU,  127  IU.  523;  Peabody  v.  KeadaU, 
145  IU.  519;  Wiley  v.  Ewalt,  66  HI.  26;  Carpenter  v.  Carpenter,  8  Bush, 
283;  Ricketts  v.  Jolliff,  62  Miss.  540;  Hovey  v.  Hobson,  55  Me.  256;  Darby 
v.  Hayford,  56  Me.  246;  Hovey  v.  Chase,  52  Me.  305,  83  Am.  Dec.  514; 
Boggess  v.  Boggess,  127  Mo.  305;  Pennington  v.  Stanton,  125  Mo.  658; 
Cutler  v.  Zollinger,  117  Mo.  92;  Dennett  v.  Dennett,  44  N.  H.  541,  84  Am. 
Dec.  97;  Davren  v.  White,  42  N.  J.  Eq.  569;  Earle  v.  Norfolk  &  N.  B. 
Hosiery  Co.  36  N.  J.  Eq.  188;  Eaton  v.  Eaton,  37  N.  J.  L.  108,  18  Am. 
Hep.  716;  Blakeley  v.  Blakeley,  33  N.  J.  Eq.  508;  Aldrich  v.  Bailey,  132 
N.  Y.  85;  Van  Deusen  v.  Sweet,  51  K  Y.  378;  Jones  v.  Jones,  43  K".  Y.  S. 
R.  434;  Creagh  v.  Blood,  2  Jones  &  L.  509,  8  Ir.  Eq.  434;  Bowman  v. 
Van  Baum,  17  Phila.  633,  14  W.  N.  C.  185;  Day  v.  Seely,  17  Vt.  542; 
MUler  v.  Rutledge,  82  Va.  863;  Buckey  v.  Buckey,  38  W.  Va.  168;  Jarrett 
v.  Jarrett,  11  W.  Va.  584;  Wright  v.  Jackson,  59  Wis.  569;  Hall  v.  Unger, 
2  Abb.  (U.  S.)  507;  Davies  v.  Grindley,  Shelf ord,  Lunacy,  266.  And  see 
Kennedy  v.  Marrast,  46  Ala.  161. 

3  Doe,  Guest,  v.  Beeson,  2  Houst.  246;  Jones  v.  Thompson,  5  Del.  Ch. 
374;  Bowman  v.  Van  Baum,  17  PhUa.  633,  14  W.  N.  C.  185. 

4  Boggess  v.  Boggess,  127  Mo.  305;  Jones  v.  Jones,  43  N.  Y.  S.  E.  434; 
MUler  v.  Rutledge,  82  Va.  863;  Buckey  v.  Buckey,  38  W.  Va.  168;  GuUd 
v.  HuU,  127111.  523. 

5  Hovey  v.  Hobson,  55  Me.  256. 

6  KimbaU  v.  Cuddy,  118  HI.  213;  Lindsey  v.  Lindsey,  50  HI.  79,  99  Am. 
Dec.  489;  WUey  v.  Ewalt,  66  HI.  26. 


254  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

than  a  valid  will,1  nnd  a  much  less  degree  of  capacity  is  required 
for  the  execution  of  a  mortgage,  which  was  proposed,  discussed, 
and  determined  upon  previously  when  the  party  was  of  unim- 
paired capacity,  leaving  nothing  to  be  done  but  the  affixing  of 
the  signature,  than  is  required  for  the  execution  of  a  complicated 
contract.2  And  a  deed  executed  upon  terms  originated  by  the 
grantor  while  he  was  unquestionably  sane  will  not  be  set  aside 
on  the  ground  of  mental  unsoundness  where  he  retained  capacity 
to  recollect  and  understand  the  terms  of  the  contract  before 
agreed  upon,3  though  a  new  transaction  then  for  the  first  time 
proposed  would  be  set  aside.4  In  order  to  set  aside  a  deed  on 
the  ground  of  senile  dementia  such  a  degree  of  mental  weakness 
must  be  shown  as  renders  the  grantor  incapable  of  understanding 
and  protecting  his  interests.6  And  one  who  retains  a  knowledge 
of  his  property  and  of  the  character  of  his  acts  may  make  a  valid 
deed  though  he  may  not  have  capacity  to  transact  all  the  ordi- 
nary business  of  life.6  And  it  is  not  necessary  that  he  should 
perfectly  comprehend,  the  results  of  the  bargain  he  was  making, 
or  know  and  understand  whether  the  deed  given  did  or  did  not 
constitute  a  mortgage,7  though  it  is  not  sufficient  merely  that  he 
knew  he  was  making  a  deed  and  intended  to  do  it.8  So,  a  de- 
gree of  weakness  of  mind  far  below  what  would  be  necessary  to 
justify  a  commission  of  lunacy  if  it  had  been  taken  advantage  of 
to  procure  the  execution  of  a  deed  will  be  sufficient  ground  for 
setting  the  deed  aside.9  And  the  jury  may  consider  as  a  test  of 
capacity  whether  the  party  was  capable  of  understanding  what 
he  was  doing  in  executing  the  instrument  when  its  general  pur- 
port was  fully  explained  to  him.10  And  the  fact  that  a  grantor 
was  neither  wholly  incompetent  nor  fully  competent  to  under- 
stand the  nature  of  the  transaction  does  not  justify  setting  aside 

1  Jarrett  v.  Jarrett,  11  W.  Va.  584. 

2  Parker  v.  Marco,  76  Fed.  Eep.  510. 

3  Jones  v.  Evans,  7  Dana,  96. 

4  Parker  v.  Marco,  76  Fed.  Rep.  510. 
6  Guild  v.  Warne,.  149  111.  105. 

6  Buckey  v.  Buckey,  38  W.  Va.  168. 
1  Darby  v.  Hayford,  56  Me.  246. 

8  Sclmff  v.  Ransom,  79  Ind.  458. 

9  Blackford  v.  Christian,  1  Knapp,  73. 

10  Ball  v.  Mannin,  3  Bligk,  N.  S.  1,  1  Dow  &  C.  880. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  255 

a  deed  where,  under  impartial  advice,  she  could  have  understood 
it  and  have  effected  her  intentions.1 

So,  the  question,  where  the  validity  of  a  mortgage  is  attacked  on 
the  ground  of  insanity,  is  whether  the  mortgagor  understood  what 
he  was  doing  and  what  property  was  covered  by  the  mortgage  and 
for  what  consideration  it  was  given.2  And  one  who  has  sufficent 
mental  capacity  to  comprehend  the  making  and  execution  of  the 
mortgage  and  its  use  is  estopped  to  interpose  the  defense  of  usury 
against  a  person  purchasing  it  upon  the  faith  of  his  affidavit  that  the 
mortgage  was  a  good  and  valid  security.3  But  a  satisfaction  of  a 
mortgage  will  be  canceled  and  set  aside  in  equity  where  the  party 
giving  it  was  mentally  incapable  of  understanding  the  nature  of 
the  act  or  of  appreciating  its  consequences."  So,  the  execution 
of  the  power  of  attorney  to  sell  real  estate  is  an  act  of  a  simple 
character  not  involving  complicated  details,  requiring  only  suf- 
ficient mind  and  memory  to  understand  the  nature  of  the  busi- 
ness engaged  in  and  the  character  and  location  of  the  property 
and  the  object  and  effect  of  the  act,6  the  capacity  required 
being  the  same  as  that  required  for  the  valid  execution  of  a  will 
of  real  property.6  It  is  immaterial,  on  the  question  of  capacity 
to  make  a  deed,  whether  the  grantor  had  native  business  capacity 
to  understand  it,  or  whether  he  learned  from  competent  sources 
what  would  be  for  his  interest,  or  had  obtained  advice  from  oth- 
ers so  that  by  their  explanation  he  must  have  been  made  to 
understand.7 

§  3.   Time  of  application  of  tests. 
The  very  time  of  the  execution  of  a  deed  is  the  point  of  time 
for  inquiry  as  to  grantor's  capacity  to  make  it.e     And  it  is  not 

1  Stewart  v.  Flint,  59  Vt.  144. 

2  Parker  v.  Marco,  76  Fed.  Eep.  510. 

3  Hirsch  v.  Trainer,  3  Abb.  N.  C.  274. 
*  Henrizi  v.  Kehr,  90  Wis.  344. 

6  Hall  v.  Unger,  2  Abb.  (U.  S.)  507. 

«  Hall  v.  Unger,  2  Abb.  (U.  S.)  507. 

1  Doty  v.  Hubbard,  55  Vt.  278. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Disposing  Mind,  Im- 
becility, Senility,  Periodical  Insanity,  Lucid  Interval. 

8  Francis  v.  Wilkinson,  147  111.  370;  Buckey  v.  Buckey,  38  W.  Va.  168; 
Jarrett  v.  Jarrett,  11  W.  Va.  5S4;  Anderson  v.  Cranmer,  11  W.  Va.  562. 


"256  MEDICAL   JTEISPEDDENCE    OF    INSANITY. 

invalidated  by  the  fact  thai  the  grantor  was  insane  generally  if  he 
were  sane  at  the  time  of  executing  it.1  And  a  ratification  of  a 
deed  made  while  insane  must  have  been  the  intelligent  act  of  the 
grantor  knowing  that  he  was  acting  nnder  the  contract  contained 
in  the  deed  and  understanding  and  availing  himself  of  it.2 

§  4i.  Effect  of  partial  insanity. 
Mere  proof  of  insanity  on  the  part  of  a  grantor  is  not  sufficient 
to  set  aside  his  deed  ;  it  mnst  be  shown  that  the  transaction  was 
affected  by  it.s  Monomania  or  partial  insanity  will  not  invalidate 
a  deed  unless  it  is  related  to  or  snch  as  to  affect  the  grantor's  rea- 
son and  judgment  with  reference  to  the  transaction.4  But  partial 
insanity  of  such  a  character  as  to  induce  a  conveyance  of  property 
will  avoid  a  deed,  even  in  the  absence  of  fraud.5  And  a  convey- 
ance made  by  a  man  of  weak  intellect  to  a  woman  whom  he  re- 
garded as  a  divine  person,  who  could  say  or  do  or  wish  nothing 
that  was  wrong  and  whose  influence  over  him  was  unbounded, 
for  an  inadequate  consideration,  will  be  set  aside  in  equity.6  So, 
•a  party  seeking  to  avoid  a  contract  by  reason  of  an  hallucination 
must  show  its  existence  at  the  time  of  making  the  contract,  and 
that  it  was  of  a  character  affecting  his  capacity.7  And  a  delusion 
entertained  by  a  grantor  or  mortgagor  will  not  affect  a  convey- 
ance made  by  him  where  it  is  in  no  way  connected  with  and  in  no 
way  adfecfe  the  Transaction.8  And  a  mortgage  given  by  a  person 
who  comprehends  what  he  is  doing  is  valid  though  he  was  afflicted 
with  a  religious  delusion  and  was  a  person  of  eccentric  habits.9 
So,  a  deed  given  by  a  person  who  knew  the  nature  of  her  act  and 
the  character  of  the  property,  and  had  definite  wishes  with  refer- ' 

Towsxi  -    SeHars,  5  Dow.  P.  C.  231. 

-  Bond  t.  Bond,  7  Allen,  1. 

:  Blakeley  v.  Blakeley,  33  N.  J.  Eq.  508. 

4B-axgeBS  v.  Pollock,  53  Iowa,  273,  36  Am.  Bep.  218;  Cutler  v.  Zollinger, 
117  Mo.  92;  Benoistv.  Mnrrin,  58  Mo.  307;  EMn  v.  McCracken,  11  Phila. 
534;  Boyee  v.  Smi&,  9  Giatt  704. 

:-  Hay  -v.  Miller,  48  Neb.  156;  Dewey  v.  AHgire,  37  Neb.  6;  Jone's  Appeal, 
11  "W.  IT.  C  .  2SB;  Lemon  v.  Jenkins,  48  Ga.  313. 

c  Jone's  Appeal  11  W.  N.  C.  258. 

8  Cutler  T.  Zollinger,  117  Mo.  92. 

f-  Jones  t.  Hughes,  15  Abb.  Iff.  C.  141;  Campbell  v.  Hill,  23  U.  C.  C.  P. 
473. 

» Campbell  v.  HiH,  23  V.  C.  C.  P.  473. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASKS.  _"  , 

ence  thereto,  and  secured  them  by  contract,  will  not  be  set  aside 
on  the  ground  of  mental  incapacity,  though  she  believed  that  there 
were  devils  and  spirits  in  her  room  and  that  they  crawled  over 
her  and  made  her  bed  an  abiding  place.1 

Suspicions  entertained  by  a  party,  arising  from  observations 
made  by  him  and  founded  upon  facts  from  which  he  was  satisfied 
to  deduce  them,  though  exaggerated  and  extremely  absurd,  are  not 
insane  delusions  which  would  legally  disqualify  him  from  making 
a  binding  disposition  of  his  property.2  But  a  deed  may  be  avoided 
when  made  by  a  person  laboring  under  an  insane  delusion  which 
was  such  that  though  he  knew  he  was  making  a  deed  and  what  its 
effect  would  be  he  was  rendered  entirely  indifferent  to  property, 
incapacitating  him  from  a  rational  care  of  his  own  interests  or  those 
of  others.'  And  a  delusion  on  the  part  of  a  father  as  to  the  conduct 
of  his  son,  which  prompts  him  to  deed  his  property  to  others  after 
having  promised  to  devise  it  to  a  son,  is  sufficient  to  invalidate  the 
deed.4  And  the  burden  of  proof  rests  with  the  party  claiming 
under  a  deed  of  a  grantor  who  had  labored  under  permanent  or 
habitual  insane  delusions  with  reference  to  the  subject-matter  of 
the  transaction  to  prove  that  he  was  free  from  such  delusions  at 
the  time  the  deed  was  given.5 

§  5.  Mental  incapacity  combined  with  fraud. 

"With  reference  to  conveyances  as  well  as  contracts,  a  very 
modified  degree  of  mental  incapacity  is  sufficient  to  invalidate 
them  if  the  transaction  is  accompanied  by  fraud,  imposition,  or 
undue  influence.5  And  a  deed  will  be  set  aside  because  of  a  degree 
of  weakness  of  mind  on  the  part  of  the  grantor  far  less  than  that 
which  would  be  necessary  to  justify  the  issuing  of  a  commission  or 
a  verdict  of  lunacy  where  such  weakness  has  been  taken  advan- 

>  Cutler  v.  Zollinger,  117  Mo.  92. 

2  Jones  v.  Hughes,  15  Abb.  N.  C.  141. 

sBond  v.  Bond,  7  Allen,  1. 

4  Kastell  v.  Hillman,  53  N.  J.  Eq.  49. 

5  Jerry  v.  Townshend,  9  Md.  1 45. 

For  Dr.  Clevenger's  discussion  on  tnis  subject,  see.  Partial  Insanity, 
Paranoia,  Periodical  Irt-sani'y. 

sCorbit  v.  Smith,  7  Iowa,  60,  72  Am.  Dec.  431;  Anthony  v.  Hutchins,  10 
E.  I.  165. 
17 


258  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

tage  of  to  procure  its  execution.1  A  conveyance  made  by  a  grantor 
while  so  imbecile  of  mind  and  infirm  of  purpose  as  to  render  him 
an  easy  victim  to  imposition  and  fraud  will  be  set  aside  in  equity 
where  such  influence  has  been  used  successfully  in  procuring  it, 
though  he  was  not  positively  insane,2  and  old  age  combined  with 
weakness  and  fraud  may  constitute  good  ground  for  setting  aside 
a  deed.3  "Where  the  grantor  acts  from  weak-mindedness  it  is  the 
duty  of  the  court  to  examine  into  the  equities  and  take  such  steps 
as  may  be  necessary  to  protect  his  rights,4  and  all  the  circum- 
stances will  be  taken  into  consideration  in  determining  whether 
the  consideration  was  inadequate  or  the  contract  unequal.6 

Where  a  deed  is  sought  to  be  invalidated  because  of  fraudu- 
lent imposition  or  influence  upon  a  weak  mind,  however,  the 
grantor  must  have  been  so  enfeebled  or  weakened  as  to  render 
him  incapable  under  the  circumstances  of  resisting  the  influence 
and  asserting  his  own  independence  of  will.6  And  the  fact  that 
he  was  old  and  of  infirm  mind  and  likely  to  yield  to  importunity 
or  to  become  the  victim  of  imposition  will  not  invalidate  his  con- 
veyance unless  it  appears  that  such  improper  influences  were 
actually  and  successfully,  exerted.7  The  burden  of  proof  rests 
with  the  grantee  of  an  ignorant  or  weak-minded  grantor  to  show 
that  the  contents  of  the  deed  were  made  known  to  him.8  And  a 
conveyance  by  an  aged  person  of  weak  mind,  without  considera- 
tion, of  all  his  real  estate,  comprising  the  bulk  of  his  property,  to 
a  son  and  daughter  to  the  exclusion  of  the  other  three  children, 

'Blachford  v.  Christian,  1  Knapp,  73;    Craddock  v.  Cabiness,  1  Swan,, 
474;  Greer  v.  Greens,  9  Gratt.  330. 

2  Gass  v.  Mason,  4  Sneed,  497;  Long  v.  Long,  9  Md.  348;  Mott  v.  Mott, 
49  N.  J.  Eq.  192;  Morton  v.  Morton  (N.  J.)  7  Cent.  134;  Sprague  v.  Duel, 
Clarke,  Ch.  90;  Allore  v.  Jewell,  94  TJ.  S.  506,  24  L.  ed.  260;  Harding  v. 
Handy,  24  TJ.  S.  11  Wheat.  103,  6  L.  ed.  429;  Kempson  v.  Ashbee,  L.  E. 
10  Ch.  Cas.  15. 

3  Smith  v.  Beatty,  2  Ind.  Eq.  456,  40  Am.  Dec.  435. 

4  Watson  v.  Smith,  7  Or.  448;  Mott  v.  Mott,  49  N.  J.  Eq.  192;  Perkins 
v.  Scott,  23  Iowa,  237. 

6  Sprague  v.  Duel,  Clarke,  Ch.  90. 

6  Doe,  Guest,  v.  Beeson,  2  Houst.  246. 

1  Walton  v.  Northington,  5  Sneed,  282;  Marmon  v.  Mannon,  47  Iowa, 
121 ;  Willemin  v.  Dunn,  93  HI.  511;  Beville  v.  Jones,  74  Tex.  148;  Day  v. 
Seeley,  17  Vt.  542. 

8  Hyer  v.  Little,  20  N.  J.  Eq.  443. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES. 


259 


will  be  declared  void  where  the  design  was  not  proved  to  have 
originated  with  him,  and  the  nature  and  legal  effect  of  the  trans- 
action had  not  been  fully  or  sufficiently  explained  to  him.1  So, 
weakness  of  intellect  on  the  part  of  a  grantor  in  connection  with 
the  fact  that  the  conveyance  was  made  in  favor  of  a  person  stand- 
ing in  an  intimate  or  trust  relation,  and  is  prejudiced  or  unfair, 
or  other  suspicious  circumstances  going  to  show  that  the  weakness 
had  been  taken  advantage  of,  will  warrant  setting  it  aside.2  And 
such  a  transaction  casts  the  burden  of  proof  upon  the  grantee  of 
perfect  fairness  and  of  capacity  on  the  part  of  the  grantor.3  And 
where  his  testimony  is  evasive,  the  burden  is  increased  and  it  is 
no  excuse  that  he  was  afraid  of  being  entrapped  by  counsel.4 
And  evidence  that  a  deed  had  been  read  over  to  an  illiterate 
grantor  by  an  unprofessional  witness,  whose  capacity  to  explain 
it  was  doubtful,  is  not  sufficient  to  sustain  the  burden  of  proof.6 
The  facts  that  a  grantor  was  of  feeble  intellect  and  the  relation 
of  principal  and  general  agent  existed  between  him  and  his 
grantee,  and  that  the  price  paid  for  the  land  was  inadequate,  are 
all  circumstances  calculated  to  impeach  a  deed  as  fraudulent.6 
So,  great  weakness  of  mind  not  amounting  to  absolute  disqualifi- 
cation, coupled  "with  grossly  inadequate  consideration,  may  fur- 
nish a  sufficient  ground  for  the  interference  of  equity,7  though 
each  case  must  stand  upon  its  own  facts,8  and  an  impaired  mind 

1  Jones  v.  Thompson,  5  Del.  Ch.  374. 

2  Lawrence  v.  Willis,  75  N.  C.  471 ;  Thorn  v.  Thorn,  51  Mich.  167;  Prew- 
ett  v.  Coopwood,  30  Miss.  369;  Cadwallader  v.  West,  48  Mo.  483;  Lyons  v. 
Van  Riper,  26  N.  J.  Eq.  337;  Craddock  v.  Cabiness,  1  Swan,  474;  Hender- 
son v.  McGregor,  30  Wis.  78;  Harding  v.  Handy,  24  U.  S.  11  Wheat.  103, 
6  L.  ed.  429;  Norton  v.  Eelly,  2  Eden,  286;  McDiarmid  v.  McDiarmid,  3 
Bligh,  N.  S.  374.  And  see  Sands  v.  Sands,  112  El.  225;  Moore  v.  Moore, 
67  Mo.  192. 

3  Crawford  v.  Hoeft,  58  Mich.  1;  Dunconibe  v.  Richards,  46  Mich.  166; 
Wartemberg  v.  Spiegel,  31  Mich.  402;  Smith  v.  Smith,  60  Wis.  329. 

4  Dunconibe  v.  Richards,  46  Mich.  106. 

5  Price  v.  Price,  1  DeG.  M.  &  G.  308. 

6  Brooke  v.  Berry,  2  Gill,  83;  Berry  v.  Hall,  105  N.  C.  155. 

7AHore  v.  Jewell,  94  U.  S.  506,  24  L.  ed.  260;  Conley  v.  Nailor,  118 
U.  S.  127,  30  L.  ed.  112;  Wilson  v.  Oldham,  12  B.  Mon.  55;  McFaddin  v. 
Vincent,  21  Tex.  47;  Bunch  v.  Hurst,  3  Desauss.  Eq.  273,  5  Am.  Dec.  551; 
Clarkson  v.  Hanway,  2  P.  Wms.  203.  And  see  Hale  v.  Brown,  11  Ala.  87; 
Perkins  v.  Scott,  23  Iowa,  237. 

8  Conley  v.  Nailor,  118  U.  S.  127,  30  L.  ed.  112. 


260  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

with  inadequacy  of  consideration  and  deception  and  threats  is 
sufficient  to  warrant  setting  aside  a  deed  as  having  been  obtained 
by  fraud  and  undue  influence.1  And  an  entire  absence  of  any 
valuable  consideration,  connected  with  deceit  and  general  dotage 
upon  the  part  of  the  grantor,  is  also  sufficient.2  So,  a  conveyance 
for  a  grossly  inadequate  consideration,  obtained  by  taking  advan- 
tage of  a  delusion  under  which  the  grantor  labored,  will  be  set 
aside  though  the  grantee  was  not  responsible  for  the  delusion.3 
And  a  conveyance  by  one  whose  rnind  was  greatly  enfeebled  and 
who  was  unacquainted  with  business,  of  an  estate  with  which  he 
was  entirely  unacquainted,  to  one  who  knew  its  value  and  knew 
his  ignorance  and  failed  to  inform  him  correctly,  suppressing 
certain  facts  and  exciting  his  fears  lest  he  should  lose  the  whole, 
will  be  set  aside  though  there  was  no  actual  fraud  except  such  as 
would  be  inferred  from  the  facts.4  A  complaint  in  an  action  to 
set  aside  a  deed  alleging  that  the  grantor  was  of  extreme  old  age 
and  physical  infirmity,  and  was  mentally  weak  and  incapable  of 
attending  to  business  personally,  and  incompetent  to  comprehend 
his  property  and  the  nature  of  a  business  transaction,  not  alleging 
that  he  was  insane  or  completely  incompetent  to  understand  the 
transaction  in  question,  is  based  upon  fraud  and  will  not  justify 
a  finding  of  insanity.5 

IV.  Proof  to  establish  insanity  with  relation  to  contracts 

AND    CONVEYANCES. 

§  1.     Jfeasure  and  weight. 
Proof  of  insanity  of  a  party  to  a  contract  or  conveyance  must 
preponderate  to  invalidate  the  instrument,  or  the  legal  presump- 
tion in  favor  of  sanity  will  sustain  it.6     The  evidence  of  insanity 
must  outweigh  that  of  sanity,  and  if  there  is  only  a  balance  of 

1  Kroenung  v.  Goahri,  112  Mo.  641;  James  v.  Langdon,  7  B.  Mem.  193; 
Churchill  v.  Scott,  65  Mich.  485. 

;  Owing's  Case,  1  Bland,  Ch.  370,  17  Am.  Dec.  311. 

3  Parkhnrst  v.  Hosford,  21  Fed.  Kep.  829. 

4Lavette  v.  Sage,  29  Conn.  577.  And  see  Clarkson  v.  Han  way,  2  P. 
Wms.  203. 

5  Aldrich  v.  Bailey,  132  X.  T.  85. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Undue  Influence, 
Senility,  Senile  Dementia,  Imbecility,  Disposing  Mind. 

6  Lilly  v.  Waggoner,  27  HL  395;  Myatt  r.  Walker,  44  HI.  485. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  261 

evidence  the  validity  of  the  instrument  will  be  upheld,'  though  a 
fair  preponderance  is  all  that  is  required.2  Evidence  which 
merely  raises  a  strong  doubt  of  the  sanity  of  a  grantor  at  the  time 
of  making  a  conveyance  is  not  sufficient  to  defeat  it.3  And  to 
overcome  a  deed  executed  openly  and  acknowledged  before  a 
notary  who  had  known  the  grantor  for  years  and  who  explained 
its  effect,  upon  the  ground  of  mental  incapacity,  the  evidence 
should  be  clear  and  unquestionable.4  Evidence  which  will  not 
warrant  the  execution  of  a  commission  of  lunacy  against  a  party 
is  insufficient  to  establish  a  degree  of  insanity  or  imbecility  which 
will  destroy  his  capacity  to  contract,6  even  though  his  intellect  is 
much  impaired,  where  no  unconscionable  advantage  was  taken  to 
obtain  the  conveyance.6 

So,  where  evidence  on  the  question  of  sanity  or  insanity  is  given 
on  both  sides  and  is  evenly  balanced,  an  admission  on  the  part  of 
the  grantee,  who  was  the  grantor's  general  agent,  that  he  was  incap- 
able of  transacting  business,  corroborates  the  affirmative  of  the 
issue  and  warrants  a  finding  of  mental  incapacity.7  And  the 
affirmative  evidence  of  those  best  acquainted  with  the  person  al- 
leged to  be  insane  should  outweigh  testimony  of  persons  having 
interviews  with  him  near  the  time  in  question  that  they  saw  no 
indications  of  insanity.8  So,  mere  proof  of  general  derangement 
of  a  grantor  is  insufficient  to  sustain  a  decree  setting  aside  a  con- 
veyance where  there  is  an  averment  in  the  answer  responsive  to 
the  bill  that  he  was  sane  at  the  time  it  was  made.9  And  the  testi- 
mony of  an  expert  in  an  action  to  set  aside  a  deed  for  mental  in- 
capacity of  the  grantor,  that  he  did  not  know  whether  he  made  a 
deed,  a  will,  or  a  lease,  and  that  in  his  opinion  he  was  not  compe- 

1  Wall  v.  Hill,  1  B.  Mon.  290,  36  Am.  Dec.   578;  Myatt  v.  Walker,  44 
El.  485. 

2  Missouri  P.  E.  Co.  v.  Brazzil,  72  Tex.  233. 

3  Myatt  v.  Walker,  44  111.  485;  Aurentz  v.  Anderson,  3  Pittsb.  310;  Laing 
v.  Bruce,  1  Dunlop,  B.  &  M.  59. 

4  Elcessor  v.  Elcessor,  146  Pa.  359. 

6  Baumgarden  v.    Langles,    35    La.    Ann.    441;    Sprague  v.    Duel,    11 
Paige,  480. 

6  Sprague  v.  Duel,  11  Paige,  480. 

7  Brooke  v.  Berry,  2  Gill,  83. 

8  Emery  v.  Hoyt,  46  111.  258. 

9  Ackey  v.  Stepkens,  8  Ind.  411. 


262  MEDICAL    JUKISPEUDEXCE    OF    INSANITY. 

tent  to  protect  his  own  interests,  is  sufficient  to  uphold  a  decree 
setting  aside  the  deed.1  But  a  deed  may  be  upheld  where  the 
subscribing  witnesses  detailed  facts  and  circumstances  evidencing 
mental  capacity,  and  a  preponderance  of  the  evidence  sustains 
the  grantor's  capacity,  though  one  of  the  subscribing  witnesses 
gave  an  opinion  that  he  was  not  competent  to  contract.2  And 
a  person  who  has  not  been  interdicted  is  not  proved  to  be  uni- 
versally insane,  so  that  it  could  not  but  be  known  to  the  party 
dealing  with  him,  by  the  opinions  of  five  witnesses  that  he  was 
feeble  in  intellect,  where  seven  witnesses  testify  that  he  was 
of  average  mind.3  So,  evidence  of  witnesses  present  at  the 
execution  of  a  deed  is  entitled  to  particular  weight  upon  the 
question  of  competency,4  and  is  of  greater  weight  on  the  question 
of  capacity  to  contract  than  the  opinions  of  witnesses  based  upon 
facts  which  might  or  might  not  have  resulted  from  unsoundness 
of  mind.5  And  next  to  physicians  and  persons  present  at  the 
time,  the  evidence  of  persons  whose  intimacy  with  the  family  has 
given  them  an  opportunity  of  seeing  the  grantor  and  watching 
the  operations  of  his  mind  is  important  upon  the  question  of  his 
capacity.6  So,  evidence  of  a  notary  who  takes  a  grantor's  acknowl- 
edgment to  his  deed,  that  he  was  competent  to  make  it,  is  entitled 
to  great  weight.7 

§  2.  Sufficiency,  hovj  determined. 
The  question  whether  there  is  any  evidence  of  insanity  of  a 
party  making  a  deed  or  contract  in  an  action  involving  its  valid- 
ity is  one  for  the  court,8  but  where  there  is  evidence  upon  the . 
subject  the  question  as  to  its  sufficiency  is  for  the  jury,9  and  evi- 
dence on  the  question  of  the  sanity  or  insanity  of  a  party  which 
would  justify  an  inference  of  the  disputed  fact  must  go  to  the 

1  Sponable  v.  Hanson,  87  Mich.  204. 
;  Jones  v.  Evans,  7  Dana,  96. 

3  Martinez  v.  Moll,  46  Fed.  Bep.  721. 
*  Jarrett  v.  Jarrett,  11  W.  Ya.  584. 

5  Beverley  v.  Walden,  20  Gratt.  147. 
6, Jarrett  v.  Jarrett,  11  TV.  Ya.  584. 
'  Buckey  v.  Buckey,  38  W.  Ya.  168. 

4  Campbell  v.  Bilk  23  TJ.  C.  C.  P.  473. 

9  Doe,  Sutton,  v.  Keagan,  5  Black!  217,  33  Am.  Dec.  466;  Campbell  v. 
Hill,  23  U.  C.  C.  P.  473;  Doe,  Guest,  v.  Beeson,  2  Houst.  246. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  263 

jury  without  reference  to  the  strength  and  persuasiveness  of  the 
opposing  proof.1  And  a  finding  setting  aside  a  conveyance  on 
the  ground  of  the  insanity  of  the  grantor  will  not  be  set  aside  on 
appeal  where  there  was  evidence  that  at  the  time  of  its  delivery 
the  grantor  was  incapacitated  from  taking  rational  care  of  his 
property  by  reason  of  a  delusion.2  The  question  of  capacity  in 
an  action  to  set  aside  a  conveyance  by  a  grantor  of  weak  mind, 
however,  not  depending  upon  his  absolute  insanity  at  the  time, 
may  be  determined  by  the  court  without  granting  an  issue.3  And 
the  verdict  of  a  jury  as  to  such  capacity  in  an  action  to  set  aside 
a  deed  as  having  been  obtained  by  undue  influence  exercised  upon 
a  weak  mind  is  not  conclusive,  the  court  being  competent  to  de- 
termine for  itself  the  degree  of  weakness  or  imposition  which 
would  induce  it  to  set  the  deed  aside."  So,  though  a  delusion 
exists,  the  question  of  capacity  to  contract  is  still  one  of  fact.5 

§  3.  Previous  and  subsequent  insanity. 
The  competency  of  a  person  making  a  conveyance  or  contract 
is  to  be  determined  as  to  the  time  when  it  was  made,  but  the  con- 
dition of  his  mind  both  before  and  afterwards  is  proper  to  be  con- 
sidered in  determining  his  mental  condition  at  that  time.6  And 
where  insanity  is  established  both  before  and  after  the  execution 
of  a  contract,  existing  so  near  that  time  as  to  leave  but  a  few 
hours  intervening,  and  the  character  of  the  mania  is  such  as  to 
have  led  to  the  act,  a  lucid  interval  which  will  sustain  it  will  not 
be  inferred  from  the  fact  that  he  seemed  to  transact  business  in 
an  intelligent  manner.7  The  difference  of  time  between  the  exe. 
cution  of  deeds  and  the  time  at  which  their  validity  is  challenged 

1  First  Nat.  Bank  v.  Wirebach,  106  Pa.  37;  Asbury  v.  Fair,  111  N.  C.  251. 

2  Crowtber  v.  Bowlandson,  27  Cal.  376. 

•'Harding  v.  Handy,  24  U.  S.  11  Wbeat.  103,  6  L.  ed.  429. 

4  Harding  v.  Handy,  24  U.  S.  11  Wbeat.  103,  6  L.  ed.  429. 

5  Cutler  v.  Zollinger,  117  Mo.  92;  Jenkins  v.  Morris,  L.  B.  14  Cb.  Div. 
674. 

6  Jarrett  v.  Jarrett,  11  W.  Va.  584;  Anderson  v.  Cranmer,  11  W.  Va.  562; 
Watson  v.  Anderson,  11  Ala.  43;  Grant  v.  Tbompson,  4  Conn.  203,  10  Am. 
Dec.  119;  Hendrixv.  Money,  lBusb,  306;  Jerry  v.  Townsbend,  9  Md.  145; 
Peaslee  v.  Bobbins,  3  Met.  164;  Dickinson  v.  Barber,  9  Mass.  225,  6  Am. 
Dec.  58;  M'Adam  v.  Walker,  1  Dow,  P.  C.  148.  And  see  Peters  v.  Peters, 
101  Micb.  291. 

7  Ebars  v.  Mossbarger,  9  HI.  App.  122. 


26i  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

is  a  material  consideration.1  And  where  there  is  a  conflict  of  evi- 
dence as  to  the  party's  sanity  the  testimony  of  witnesses  relating 
to  the  period  of  time  nearest  to  the  date  of  their  execution  is  enti- 
tled to  the  most  weight.2 

But  a  conveyance  made  twenty  years  before  should  not  be 
set  aside  on  the  mere  suggestion  that  the  party  making  it  was 
rum  compos  //iL/ifis.2  or  on  general  evidence  of  insanity  not  apply- 
ing to  the  particular  moment  of  execution,  where  there  is 
general  evidence  of  sanity  during  the  same  period,  corroborated 
by  the  performance  of  sane  acts  and  the  fact  that  the  deed 
itself  was  rational.4  Xor  will  a  mortgage  be  set  aside  upon 
general  evidence  of  insane  delusions  and  hallucinations  spring- 
ing mainly  from  religious  excitement  and  absurd  conduct  and 
extravagant  talk  ranging  over  a  number  of  years,  where  none  of 
it  approached  the  transaction  in  question,  which  was  rational 
in  its  nature.5  And  evidence  of  monomania  extending  over 
twenty  years  anterior  to  and  down  to  the  year  in  which  deeds  were 
executed  by  a  grantor,  found  some  years  afterwards  by  commis- 
sion to  have  been  insane  all  such  time,  is  not  sufficient  to  over- 
come a  prima  facie  case  of  sanity  at  the  time  of  their  execution.6 
Nor  will  the  restoration  of  a  bond  for  a  deed  be  directed  on  the 
ground  that  the  maker  thereof  was  insane  because  at  or  about 
that  time  he  showed  unmistakable  indications  of  aberration  of 
mind  where  he  continued  in  business  for  several  months  after 
that  time.7  And  an  instruction  in  an  action  to  set  aside  a  deed 
that  the  appearance  of  the  grantor  might  be  taken  into  consider- 
ation in  determining  his  sanity  is  not  objectionable  upon  the 
ground  that  a  verdict  should  not  be  permitted  to  be  based  upon 
his  appearance,  or  that  the  time  intervening  was  too  long,  where 
the  evidence  is  not  all  in  the  record.6  So.  evidence  that  a  person 
is  sane  or  insane  at  the  time  of  the  trial  may  be  given  as  tending 

!  Towart  v.  Sellars,  5  Dow,  P.  C.  231.  And  see  Berry  v.  Hall,  105  X.  C. 
154. 

-  Extun  v.  Canty,  34  Miss.  533. 

3  Winchomb  v.  Hall,  1  Ok  Rep.  40.     And  see  Harden  v.  Hays,  14  Pa.  91. 

4  Towari  v.  Sellars,  5  Dow,  P.  C.  231. 

;  Campbell  v.  Hill,  23  U.  C.  C.  P.  526. 
c  Ferguson  v.  Borrett,  1  Post.  &  F.  613. 
1  Hubbard  v.  Hoag,  60  Iowa,  756. 
s  Koile  v.  Ellis,  16  Ind.  301. 


J  ]  GAL   ADJUDICATIONS    IN    CIVIL   CASKS.  265 

to  show  the  condition  of  his  mind  at  a  previous  period,  the  jury 
being  left  to  judge  as  to  its  weight.1 

§  4.     Nature  of  the  act. 

"Where  the  evidence  as  to  insanity  in  an  action  to  set  aside  a 
deed  is  evenly  balanced  the  court  will  look  to  the  circumstances 
surrounding  the  transaction  and  its  fairness  and  rationality,  and 
the  probability  that  one  in  possession  of  his  faculties  would  or 
would  not  perform  it,2  such  probability  affording  strong  evidence 
of  the  presence  or  absence  of  insanity.3  And  evidence  of  pru- 
dence and  judgment  manifested  in  determining  the  best  mode  of 
carrying  a  conveyance  into  effect  and  effecting  the  intentions  of 
the  grantor  gives  rise  to  a  presumption  that  he  was  not  too  men- 
tally weak  to  execute  the  instrument.4  So,  the  fact  that  a  grantor 
realized  for  his  land  all  that  it  was  worth  and  accomplished  his 
purpose,  which  was  a  reasonable  one,  affords  strong  proof  of  his 
capacity  to  make  a  deed.6  And  evidence  that  there  was  nothing 
unnatural  or  improvident  in  a  transaction  will  sustain  a  deed  as 
against  proof  of  incompetency,  coming  largely  from  prejudiced 
witnesses  who  produced  no  testimony  as  to  grantor's  condition  at 
the  time  of  its  execution.6  Nor  will  a  contract  and  conveyance 
disposing  of  an  estate  in  a  rational,  just,  and  prudent  manner  be 
disturbed  upon  evidence  of  previous  fits  of  nervous  disturbance 
on  the  part  of  the  grantor  requiring  some  guardian  care  for  him- 
self and  his  business,7  or  by  the  fact  that  the  grantor  was  con- 
fined in  a  lunatic  asylum  and  was  partially  released  from  his  fet- 
ters to  enable  him  to  execute  the  deed,  where  no  coercion  or 
stratagem  or  contrivance  was  employed  to  induce  him  to  execute 
it,  and  there  was  no  pretense  of  imposition.8 

1  Berry  v.  Hall,  105  N.  C.  154. 

For  Dr.  Clevenger's  discussion   on  this   subject,  see  Lucid  Interval, 
Monomania,  Paranoia,  Periodical  Insanity. 

-  Hemphill  v.  Holford,  88  Mich.  293;  Pike  v.  Pike,  104  Ala.  612. 

3  Pike  v.  Pike,  104  Ala.  642. 

4  Clearwater  v.  Kimler,  43  111.  272. 

5  Bipley  v.  Babcock,  13  Wis.  425. 

6  Stewart  v.  Curtis,  85  Mich.  496. 

7  Speers  v.  SeweU,  4  Bush,  239. 

8  Selby  v.  Jackson,  6  Beav.  192. 


Zbb  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

A  deed  the  execution  of  which  is  not  consistent  with  the  exercise 
of  mental  capacity,  however,1  or  one  made  by  a  man  of  weak  in- 
tellect in  very  necessitous  circumstances,  by  which  he  transfers  his 
rights  for  an  inadequate  price.2  will  be  set  aside  in  equity.  And 
a  deed  of  valuable  property  by  a  father  to  one  of  his  sons,  who 
habitually  furnished  him  with  drink,  and  a  subsequent  deed  of  the 
same  property  to  the  wife  of  such  son,  and  a  release  of  an  action 
brought  to  set  it  aside,  will  be  set  aside  where  the  father  had 
become  deranged  and  fatuous  from  habitual  drunkenness.3  But, 
however  impossible  and  unaccountable  a  deed  may  be,  it  cannot 
be  impeached  where  the  grantor  had  sufficient  understanding  to 
clearly  comprehend  the  nature  of  the  business  he  was  engaged  in 
and  freely  consented  thereto.4  Mere  weakness  and  folly  displayed 
in  the  disposition  of  property  are  not  sufficient  to  warrant  setting 
it  aside.5  And  a  sale  of  valuable  property  to  be  paid  for  in  confed- 
erate currency  which  was  greatly  depreciated  does  not  of  itself  indi- 
cate mental  incapacity  which  will  affect  the  validity  of  the  sale, 
where  it  does  not  appear  that  the  property  would  have  been  pro- 
ductive in  the  future,  or  that  the  grantor  could  have  realized 
more  than  the  amount  for  which  he  sold  it.6  So,  the  performance 
of  the  act  in  question  by  a  lunatic  is  not  of  itself  sufficient  evi- 
dence of  a  lucid  interval,7  and  a  conveyance  which  is  not  in 
accordance  with  the  conduct  of  men  of  ordinary  prudence  tends 
to  disprove  the  existence  of  a  lucid  interval.8 

§  5.     Precious  intentions. 

A  deed  in  execution  of  a  purpose  maintained  by  the  grantor 
for  many  years  will  be  upheld  though  he  was  old,  illiterate,  and 
of  weak  mind  at  the  time.9     But  the  declarations  of  a  grantor 

McDaniel  v.  McCoy,  68  Mich..  340;  Lemon  v.  Jenkins,  48  Ga.  313. 
:  Bunch  v.  Hurst,  3  Desauss.  Eq.  273,  5  Am.  Dec.  551. 
1  Nevfllfi  v.  Nevffls,  6  Grant,  Ch.  636. 

4  Jarrett  v.  Jarrett,  11  W.  Va.  584. 

5  Siemon  v.  Wilson.  3  Edw.  Ch.  36. 

";  Beverley  v.  Walden,  20  Gratt,  147. 
•  Creagh  V.  Blood,  8  Br.  Eq.  435. 
5  Pike  v.  Pike,  104  Ala.  642. 

For  Br.  Clevenger's  discussion  on  this  subject,  see  Lucid  Interval, 
chap.  YIH.  p.  230. 

'-■• James  v.  Langdon,  7  B.  Mon.  193;  Exuni  t.  Canty,  34  Miss.  532. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  207 

while  of  sane  mind  as  to  his  intentions  concerning  the  disposal  of 
certain  property  would  not  of  themselves  tend  to  prove  that  he 
was  insane  at  the  time  of  making  a  subsequent  conveyance  of 
such  property  making  a  different  disposition  of  it.1  And  a  deed 
procured  by  a  husband  from  his  wife  at  a  time  when  there  was 
strong  evidence  that  she  was  in  a  delirious  state  of  mind,  and  so 
near  death  as  to  have  lost  even  the  faintest  glimmer  of  either 
observation  or  memory  of  earthly  affairs,  will  be  set  aside  though 
there  was  evidence  that  she  intended  to  make  that  disposition  of 
her  property.2 

§  6.  Acts  and  conduct. 

Absurd  or  irrational  conduct  affords  evidence  of  unsoundness 
of  mind,  and  the  greater  the  number  of  such  acts  the  stronger  the 
proof ;  but  though  they  tend  to  prove  insanity  they  may  not  be 
sufficient  to  establish  the  fact.3  Thus,  the  fact  that  one  who  had 
previously  been  cheerful  becomes  moody  and  despondent  and 
fears  that  he  is  coming  to  want,  and  believes  that  his  wife  has 
funds  to  aid  him  but  declines  to  do  so,  justifies  equitable  investi- 
gation into  the  justice  of  any  bargain  made  with  persons  in  a  con- 
fidential relation  ;4  though  the  mere  fact  that  a  grantor  had  fallen 
into  a  melancholy  frame  of  mind  expressing  apprehension  of 
coming  want  and  becoming  less  social  than  formerly  would  be 
insufficient  to  avoid  his  deed.5  And  evidence  of  a  change  of  dis- 
position upon  the  part  of  a  party  after  the  sudden  death  of  his 
wife,  and  that  he  became  sullen,  ugly,  and  quarrelsome,  and 
treated  his  mother  unkindly,  charging  her  with  wanting  to  get 
his  insurance,  and  believed  that  men  were  following  him  who 
were  going  to  kill  him,  and  that  a  man  had  chased  him,  and  that 
he  had  trouble  with  a  fellow  laborer,  and  had  fallen  into  the 
•drinking  habit  and  finally  took  his  life,  is  not  sufficient  to  require 
the  submission  to  the  jury  of  the  question  as  to  whether  or  not 

1  Howe  v.  Howe,  99  Mass.  88. 

-  Lenhard  v.  Lenliard,  59  "Wis.  60. 

3  Ekin  v.  McCracken,  11  Phila.  534. 

4  Jacox  v.  Jacox,  40  Mich.  473,  29  Am.  Rep.  5  47. 

5  Canfield  v.  Fairbanks,  63  Barb.  462. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Senile  Dementia, 
Melancholia,  Delusions. 


268  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

lie  was  mentally  incapacitated  to  make  an  exchange  of  one  benefit 
certificate  for  another.1 

So,  evidence  of  forgetfulness  on  the  part  of  a  grantor  of 
persons  and  events,  and  that  he  frequently  failed  to  recognize 
members  of  his  own  family,  and  of  carelessness  in  business 
matters,  and  of  forgetfulness  of  the  nature  and  extent  of  his 
property,  and  that  his  business  was  transacted  by  his  son,  is 
•  sufficient  to  establish  incapacity  to  make  a  deed.2  And  extrava- 
gant actions,  and  haggard  appearance,  and  unnatural  excite- 
ment, and  periods  of  depression,  exaltation,  and  wild,  unreason- 
able, and  visionary  projects  and  delusions  as  to  business  en- 
terprises, on  the  part  of  a  grantor,  are  sufficient  to  establish 
insanity,  though  he  had  not  the  appearance  of  an  insane  man 
and  his  family  had  not  seen  fit  to  interfere  with  his  affairs.3  And 
incapacity  to  make  a  deed  is  established  by  proof  that  the  grantor 
after  meeting  with  important  losses  abandoned  his  business, 
secreted  himself,  and  became  noisy  and  obscene,  shouting,  sing- 
ing, and  praying,  so  that  he  could  be  heard  a  long  distance,  and 
became  subject  to  fits,  and  acted  in  a  wild  and  eccentric  manner,, 
and  that  he  was  controlled  and  managed  by  his  son  by  the  use  of 
a  whip,  to  which  he  submitted  uncomplainingly.4  jSTor  is  proof 
that  an  old  man  about  eighty  years  of  age  desired  to  marry  a 
woman  about  half  his  age  and  of  not  very  good  character,  wholly 
irrelevant  in  an  action  involving  his  capacity  to  contract.0 

Belief  in  spiritualism,  however,  and  in  communications  with 
deceased  persons,  does  not  necessarily  establish  such  insanity  as 
will  invalidate  a  deed,6  though  a  deed  procured  by  a  medium  by 
the  use  of  his  power  as  such  would  be  held  invalid.7  And  foolish 
and  absurd  sayings  on  the  part  of  a  person  who  had  once  been 
insane  will  not  alone  establish  insanity  which  will  invalidate  his 
deed,  where  his  words  did  not  necessarily  show  an  insane  de- 

1  Boorinan  v.  Northwestern  Mut.  Belief  Asso.  90  Wis.  145. 
s  Boggess  v.  Boggess,  127  Mo.  305. 
8  Curtis  v.  Brownell,  42  Mich.  165. 

4  Haviland  v.  Hayes,  37  N.  T.  25. 

5  Prather  v.  Naylor,  1  B.  Mon.  244. 

5  Lewis  v.  Arbuckle,  85  Iowa,  335,  16  L.  B.  A.  677;  Turner  v.  Hand,  3 
Wall.  Jr.  88. 

7  Lyon  v.  Hone,  L.  B.  6  Eq.  655.     And  see  Leighton  v.  Orr,  44  Iowa,  691- 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  269 

lusion.1  And  hostility  to  the  physicians  of  an  asylum  on  the  part 
of  an  inmate  does  not  establish  an  insane  delusion  which  will 
affect  the  validity  of  his  deed  where  it  does  not  appear  that  his 
criticisms  were  unfounded  in  fact.3  And  the  impossibility  of  per- 
petual motion  is  not  so  apparent  to  the  uneducated  mind  that  a 
belief  in  it  is  evidence  of  idiocy  or  imbecility,  and  such  belief 
does  not  tend  to  disqualify  one  from  disposing  of.  property  by 
deed.3  Nor  is  testimony  of  an  assignor  that  he  did  not  recollect 
making  an  assignment  sufficient  to  shift  the  burden  of  proof  of 
mental  incapacity  at  the  time  of  making  it  from  the  party  assert- 
ing it,  where  it  appears  that  he  had  not  been  oblivious  of  the 
transaction  at  all  times,  and  his  failure  of  memory  was  traceable 
to  subsequent  causes.4 

So,  the  fact  that  a  grantor  subsequently  expressed  satisfaction 
with  what  he  had  done,  and  took  no  steps  to  set  aside  his  deed,  is 
evidence  tending  to  show  that  he  knew  what  he  was  doing  when  he 
executed  it.5  And  acts  of  ownership  over  property  purchased  by 
an  attorney,  and  declarations  of  the  principal  that  he  had  told  the 
attorney  to  buy  it,  not  only  show  ratification,  but  also  clear  away 
all  pretense  to  want  of  intentional  and  intelligent  execution  of 
the  power  of  attorney.6  So,  the  fact  that  a  grantor  deeded  his 
property  to  his  son  to  prevent  creditors  from  reaching  it,  securing 
to  himself  the  right  of  possession  and  use  during  life,  clearly  in- 
dicates that  he  understood  what  he  was  doing.7  And  a  woman 
who  can  read  and  write,  and  who  is  a  member  of  a  reputable 
church  in  good  standing,  and  who  conducted  her  father's  house- 
hold affairs  and  after  her  marriage  those  of  her  husband  prudently 
and  with  ordinary  skill,  and  instructed  her  husband's  children  in 
the  ordinary  domestic  affairs,  cannot  be  held  to  be  incompetent 
to  make  a  deed.8 

1  Ripley  v.  Babcock,  13  Wis.  425. 

2  Wright  v.  Jackson,  59  Wis.  569. 

3  Burt  v.  Quisenberry,  132  111.  385. 

4  Dorchester  v.  Dorchester,  18  N.  Y.  S.  R.  402. 

5  Ralston  v.  Turpin,  129  U.  S.  663,  32  L.  ed.  747;  Aiman  v.  Stout,  42 
Pa.  114. 

6  Aiman  v.  Stout,  42  Pa.  114. 

7  Argo  v.  Coffin,  142  111.  368. 

8  Somers  v.  Puniphrey,  24  Ind.  231. 


270  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

§  7.   Conduct  of  others. 

The  conduct  of  an  interested  party  toward  a  person  alleged  to 
have  been  insane  at  the  time  of  a  contract  or  conveyance  by  him, 
treating  him  as  sane  and  responsible,  or  as  insane  and  irresponsible, 
is  evidence  for  consideration  on  the  question  of  capacity  to  do  the 
act,1  and  is  of  much  greater  value  as  proof  of  their  opinions  as  to 
his  capacity  than  any  terms  they  may  employ  as  witnesses  to 
express  them.2  Thus,  evidence  that  a  grantor  was  considered  by 
his  family  and  others  as  of  unsound  mind,  and  that  the  entire 
control  and  management  of  his  property  were  taken  away  from 
him,  together  with  evidence  that  he  never  voted  or  attended 
church  or  places  of  public  worship,  and  of  frequent  violence  and 
senseless  conduct  and  language,  is  sufficient  to  establish  his  in- 
competency to  make  a  deed.3  So,  on  the  other  hand,  where  the 
confidential  agent  of  a  grantor  and  his  attorney  and  business 
manager  are  present  at  the  execution  of  his  deed,  aiding  him 
with  their  counsel,  it  will  not  be  presumed,  in  the  absence  of 
proof,  that  they  would  have  permitted  him  to  sign  it  if  his  free- 
dom from  improper  influence  or  his  mental  condition  was  ques- 
tionable.4 And  a  lease  made  by  an  elderly  man  which  was 
acquiesced  in  by  his  children  who  were  familiar  with  all  the  cir- 
cumstances will  not  be  disturbed  in  the  absence  of  satisfactory 
proof  of  weakness  of  intellect  connected  with  inadequacy  of  con- 
sideration and  fraud.5  And  a  mortgage  made  by  a  locomotive 
engineer  will  not  be  set  aside,  though  he  had  been  insane  and  had 
been  laid  off  on  that  account,  but  had  become  better  and  was 
again  placed  in  charge  of  a  locomotive  at  about  the  time  the 
mortgage  was  executed,  where  he  continued  about  six  weeks, 
though  he  afterwards  became  entirely  insane.6 

'  §  8.  Age;  Weakness ;  Disease. 
Old  age  alone  is  not  sufficient  to  establish  incapacity  to  make  a 

1  Laing  v.  Bruce,  1  Dunlop,  B.  &  M.  59;  Curtis  v.  Brownell,  42  Mich.  165. 
8  Jacox  v.  Jacox,  40  Mich.  473,  29  Am.  Bep.  547. 

3  Hunt  v.  Hunt,  13  N.  J.  Eq.  161. 

4  Willeinin  v.  Dunn,  93  IU.  511. 

5  "Waters  v.  Barral,  2  Bush,  598. 

6  Baldriek  v.  Garvey,  66  Iowa,  16. 


LEGAL   ADJUDICATIONS    IN   CIVIL   CASES.  271 

deed  or  contract.1  But  advanced  age  of  a  grantor  and  great  grief 
and  sickness  induced  by  the  recent  death  of  his  wife  are  proper 
to  be  considered  on  the  question  of  mental  capacity  to  execute  a 
deed.2  And  evidence  that  the  maker  of  an  assignment  to  pay 
debts  was  ninety  years  old,  and  that  her  faculties  were  much 
enfeebled  and  her  memory  seriously  impaired,  and  that  she  could 
not  understand  whether  she  owed  the  debts  or  not,  or  whether  in 
equity  and  justice  she  ought  to  pay  them,  is  sufficient  to  warrant 
setting  aside  the  assignment.3  But  a  contract  entered  into  by  an 
old  man  somewhat  feeble  in  body  and  mind  will  not  be  set  aside 
for  mental  incapacity  and  undue  influence  where  it  was  made  at 
his  own  suggestion  and  he  afterwards  told  relatives  exactly  what 
he  had  done  and  seemed  to  understand  the  terms  and  nature  of 
the  contract.4  Proof  that  a  grantor  remembered  events  that 
occurred  many  years  ago  much  more  vividly  than  recent  occur- 
rences, however,  and  that  he  would  sometimes  forget  himself  in 
conversation  and  not  be  intelligible,  tends  to  prove  an  impaired 
or  weakened  mind,  but  does  not  show  want  of  sufficient  mental 
capacity  to  dispose  of  property  by  deed ; 5  though  the  fact  that  a 
grantor  is  much  impaired  in  body  and  somewhat  enfeebled  in 
mind  is  proper  to  be  taken  into  consideration  with  other  circum- 
stances upon  the  question  of  the  existence  of  undue  influence  to 
make  the  deed.6  But  it  does  not  necessarily  imply  an  absence  of 
capacity  to  make  a  deed.'  And  the  opinion  of  a  witness  who  had 
known  another  for  several  years,  that  his  mind  was  rather  weak 
at  the  time  of  making  the  contract  in  question  but  was  improving, 
but  that  it  was  not  sufficient  to  warrant  the  witness  to  contract 
with  him,  does  not  establish  his  insanity.8 

So,  proof  of  disease  which  tends  to  cause  insanity  or  incapacity  is 
evidence  of  incompetency  to  make  a  deed  or  contract,  and  evidence 
that  a  grantor  had  been  subject  to  epileptic  fits  for  along  period  will 

'  Buckey  v.  Buckey,  38  W.  Ya.  168;  Jarrett  v.  Jarrett,  11  W.  Va.  584; 
Burt  v.  Quisenberry,  132  111.  385;  Lewis  v.  Pead,  1  Ves.  Jr.  19. 

2  Willemin  v.  Dunn,  93  111.  511. 

3  King  v.  Cummins,  60  Vt.  502. 

4  Robinson  v.  Allbee,  1  Ohio  Dec.  19. 
6  Burt  v.  Quisenberry,  132  111.  385. 

6  Sears  v.  Shafer,  1  Barb.  408;  Walton  v.  Northington,  5  Sneed,  2S2. 
»  Ralston  v.  Turpin,  129  U.  S.  663,  32  L.  ed.  747. 
8  Darnell  v.  Rowland,  30  Ind.  342. 


272  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

warrant  a  decree  setting  aside  his  deed.1  And  a  deed  will  be  set 
aside  upon  the  ground  of  undue  influence  and  mental  incapacity 
when  made  but  a  few  hours  before  death  by  a  person  afflicted  with 
pneumonia,  from  the  regular  course  of  which  he  must  have  been 
delirious  or  in  a  stupor  at  that  time.2  Where  the  mind  of  a 
party  to  a  contract  was  previously  sound,  the  state  of  his  bodily 
health  is  to  be  looked  to  on  the  question  of  his  competency,  not 
as  evidence  of  insanity,  but  to  ascertain  what  effect  it  had  on  his 
mind.3  But  the  fact  that  a  grantor  was  iu  the  earlier  stages  of  a 
disease  consisting  of  a  continuous  disorganization  of  the  brain 
itself,  but  which  was  not  uniform  in  its  influence  upon  the  under- 
standing, will  not  invalidate  his  deed  where  he  comprehended 
what  he  was  doing  and  the  consequences  of  his  act  at  the  time.4 
Nor  will  evidence  of  mere  difficulty  of  speech  upon  the  part  of 
one  who  had  had  an  attack  of  paralysis  which  was  not  severe, 
prove  anything  as  to  his  capacity  to  execute  a  deed.5  And  a 
paralytic  stroke  will  not  invalidate  a  note  and  mortgage,  though 
it  affected  the  mortgagors  mind,  where  he  had  so  far  recovered 
as  to  assume  control  of  his  business  and  carry  on  important  trans- 
actions.6 ]STor  would  such  a  transaction  be  affected  by  several 
attacks  of  paralysis  from  which  the  party  had  never  recovered, 
but  had  been  getting  worse  both  in  body  and  mind,  where  the 
consideration  was  adequate  and  he  fully  comprehended  what  he 
was  doing  and  intended  to  do  what  he  did.7 

§  9.  Adjudication  of  unsoundness. 

The  question  as  to  the  effect  of  an  adjudication  of  soundness 
or  unsoundness  of  mind  of  a  party  upon  an  inquisition  or  a  com- 
mission of  lunacy,  or  on  application  for  the  appointment  of  a 

1  Potter  v.  Woodruff,  92  Mich.  8. 
8  Worthington  v.  Major,  94  Mich.  325. 

s  McAdam  v.  "Walker,  1  Dow,  P.  C.  148.  And  see  Fane  v.  Devonshire, 
6  Bro.  P.  C.  137. 

4  Day  v.  Seeley,  17  Vt,  542. 

5  Doran  v.  McConlogue,  150  Pa.  98. 

6  Peake  v.  Yan  Lewven,  59  Iowa,  764. 

:  Hodgdon  v.  Crosby,  1  Wash.  Terr.  578. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Senility,  Senile  Z)e- 
mentia,  Brain  Degradation,  chap.  XVLT. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  273 

guardian  will  be  elsewhere  treated.1  A  decree  of  a  surrogate  in 
a  will  contest  that  the  mind  of  a  testator  was  unsound,  and  that 
he  was  mentally  incompetent  to  make  a  will,  is  competent  and 
prima  facie,  but  not  conclusive,  evidence  of  his  incapacity  to 
make  a  deed  at  or  about  that  time.2  And  where  the  will  was 
•executed  later  in  the  same  day,  the  donee  first  claiming  the  prop- 
erty under  the  will,  such  a  determination  will  warrant  a  decree 
that  the  deed  was  invalid.3  But  the  commitment  of  a  person  to 
an  insane  hospital  for  treatment  is  not  evidence  of  mental  inca- 
pacity to  make  contracts,4  though  it  has  been  held  admissible  as 
tending  to  prove  the  fact.5  And  deeds  executed  by  a  party  in 
■confinement  in  a  lunatic  asylum,  whose  hands  were  unfettered  for 
the  purpose,  will  not  be  set  aside  where  he  was  a  man  of  vigorous 
understanding,  capable  of  understanding  the  operation  of  the 
instrument,  and  the  restraint  imposed  upon  him  was  at  his  own 
request,  and  he  read  them  over  before  execution,  suggesting 
alterations,  and  acquiesced  in  them  several  months  after  his  dis- 
charge.6 The  preliminary  action  of  the  court  in  appointing  a 
next  friend  of  a  party  to  conduct  an  action  is  not  such  a  finding 
of  insanity  as  will  overcome  the  presumption  of  sanity  and  shift 
the  burden  of  proof/ 

Y.  Wills. 
§  1.  What  insanity  affects — generally. 
The  highest  degree  of  mental  soundness  is  not  required  to  con- 
stitute testamentary  capacity.8     A  person  of  very  mild  capacity 
may  make  a  valid  will  where  he  fully  understands  what  he  is 
doing.9     Nor  need  a  testator's  mind  be  perfectly  balanced  and 

See  Guardianship,  chap.  IX. 

5  Baxter  v.  Baxter,  76  Hun,  98. 

3  Bishop  v.  Hendrick,  42  N.  Y.  S.  B.  296. 

4  Schaps  v.  Lehner,  54  Minn.  208;  Knox  v.  Haug,  48  Minn.  58;  Dewey 
■v.  Allgire,  37  Neb.  6;  Wagener  v.  Harriott,  20  Abb.  N.  C.  283.  Aud  see 
Leggate  v.  Clark,  111  Mass.  308. 

b  Wheeler  v.  State,  34  Ohio  St.  394,  32  Am.  Bep.  372.  And  see  Kellogg 
v.  Cochran,  87  Cal.  192,  12  L.  B.  A.  104. 

6  Selby  v.  Jackson,  13  L.  J.  Ch.  N.  S.  249. 
1  Smith  v.  Smith,  108  N.  C.  365. 

8  Com.  v.  Hughes,  133  Mass.  496. 

*  Howell  v.  Taylor,  50  N.  J.  Eq.  428;  Barnhardt  v.  Smith,  86  N.  C.  473. 
18 


274  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

free  from  all  prejudice  and  passion,1  or  be  in  the  most  perfect 
state  of  integrity  and  possess  all  its  force  and  vigor.2  ISTor  need 
the  testator's  mind  be  strong  or  entirely  sound,  where  he  under- 
stands the  disposition  he  wished  to  make  of  his  property.3  I^or 
need  he  be  able  always  to  form  a  correct  opinion  without  error.4 
But  mental  incapacity  to  invalidate  a  will  need  not  be  that  total 
obliteration  of  the  mental  faculties  which  prevents  a  party  from 
reasoning  correctly  on  all  subjects  or  at  all  times,  or  the  want  of 
power  to  arrive  at  a  correct  conclusion  upon  correct  premises.5 
A  testator  cannot  make  a  valid  will  where  he  has  not  sufficient 
capacity  to  know  what  he  is  doing  or  to  understand  that  he  is 
executing  a  will,6  though  the  incapacity  was  produced  by  the  use 
of  medicines.7  And  an  alteration  in  a  will  leaving  a  son  totally 
unprovided  for  is  invalid,  though  the  testator  knew  that  he  was 
doing  some  testamentary  act,  but  did  not  know  the  important 
alteration  he  was  making.8  So,  a  testamentary  disposition  by  one 
who  was  in  such  a  condition  as  to  render  him  unable  to  signify 
his  wishes  is  invalid.9  And  so  when  he  has  lost  the  power  of 
combining  and  arranging  his  ideas.10  And  the  attestation  of  a 
will  at  a  time  when  the  testator  was  in  such  a  condition  as  to  be 
unable  to  dissent  from  it  if  he  desired  invalidates  it.11  And  a  will 
designed  by  another  and  only  assented  to  by  the  testator  on  being 
asked  when  he  had  no  power  to  understand  it  will  not  be  sus- 

1  Phillips  v.  Chater,  1  Dem.  533;  Boughton  v.  Knight,  28  L.  T.  N.  S.  566. 

2  Leech  v.  Leech,  5  Clark  (Pa.)  86;  Ee  Goodman's  Trusts,  44  L.  T.  N.  S. 
527;  Anclress  v.  Weller,  3  N.  J.  Eq.  604;  Oornwell  v.  Biker,  2  Dem.  354; 
Webber  v.  Sullivan,  58  Iowa,  260. 

z  Freeman  v.  Easly,  117  HI.  317;  Bundy  v.  McKnight,  48  Ind.  502; 
Zeltner  v.  Bodman  German  Protestant  Widow's  Home,  1  Ohio  Dec.  306; 
Shaver  v.  McCarthy,  110  Pa.  339;  Bulger  v.  Boss,  98  Ala.  267. 

4  Kramer  v.  Weinert,  81  Ala.  414. 

5  Meeker  v.  Meeker,  75  HI.  260;  McTaggart  v.  Thompson,  14  Pa.  149. 

6  Bittleston  v.  Clark,  2  Lee,  Eccl.  Bep.  229;  Etter  v.  Armstrong,  46 
Ind.   197. 

''  Stedham  v.  Stedham,  32  Ala.  525. 

8  Brouncker  v.  Brouncker,  2  Phillim.  Eccl.  Bep.  57.  And  see  Young  v. 
Bidenbaugh,  67  Mo.  574. 

9  Parish  v.  Parish,  42  Barb.  274;  McSorley  v.  McSorley,  2  Bradf.  188. 

10  Abraham  v.  Wilkins,  17  Ark.  292. 

11  McMechen  v.  McMechen,  17  W.  Va.  683,  41  Am.  Bep.  682;  Knapp  v. 
Beilly,  3  Dem.  427. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.      *•  275 

tained.1  The  doctrine  that  an  act  performed  by  a  lunatic  during 
a  lucid  interval  is  binding,  however,  applies  to  wills,  and  a  will 
made  by  an  insane  person  during  a  lucid  interval  is  valid,2  though 
he  was  insane  both  before  and  after  its  execution,3  or  though  he 
was  subject  to  complete  insanity.4  General  habitual  insanity  will 
not  affect  the  validity  of  a  will  where  there  were  intermissions 
and  it  was  executed  during  one  of  them,6  but  the  existence  of 
such  an  interval  at  that  particular  time  must  be  established.8 
The  words  "  of  unsound  mind,"  as  used  in  the  Indiana  statute  of 
wills,  mean  such  a  degree  of  unsoundness  of  mind  as  incapacitates 
one  from  making  a  will  according  to  the  standard  of  testamentary 
capacity  as  fixed  by  the  adjudicated  cases,7  including  every  species 
of  mental  unsoundness,8  and  the  words  "  lunatic,"  or  non  compos 
mentis,  in  the  Tennessee  act  of  April  1,  1885,  providing  that  all 
personal  estate  of  which  a  lunatic  or  non  compos  dies  seised  in- 
testate, derived  from  such  person's  husband  or  wife,  should  go  to 
the  next  of  kin  of  the  person  through  whom  it  was  derived,  means 
one  who  has  not  sufficient  mental  capacity  to  make  a  will.* 

§  2.  Age ;  weakness ;  disease. 
Great  age  alone  does  not  constitute  testamentary  disqualifica- 
tion,10 but  rather  calls  for  protection  and  aid  to  further  its  wishes 
where  the  mind  is  capable  of  acting  rationally.11     JSTor  will  old 

1  Den,  Merritt,  v.  Johnson,  5  N.  J.  L.  454. 

2  Duffield  v.  Eobeson,  2  Harr.  (Del.)  375;  Aubert  v.  Aubert,  6  La.  Ann. 
104;  Kingsbury  v.  Whitaker,  32  La.  Ann.  1055,  36  Am.  Eep.  278;  Wright 
v.  Lewis,  5  Eich.  L.  212,  55  Am.  Dec.  714. 

3  Wright  v.  Lewis,  5  Eich.  L.  212,  55  Am.  Dec.  714. 

4  Kingsbury  v.  Whitaker,  32  La.  Ann.  1055,  36  Am.  Eep.  278. 
6  Cartwright  v.  Cartwright,  1  Phillim.  Eccl.  Eep.  90. 

e  Duffield  v.  Eobeson,  2  Harr.  (Del.)  375. 

»  Blough  v.  Parry  (Ind.)  43  N.  E.  560. 

*  Willett  v.  Porter,  42  Ind.  250. 

9  Stratton  v.  Morris,  89  Tenn.  497,  12  L.  E.  A.  70. 

10  Maverick  v.  Eeynolds,  2  Bradf.  360;  Bleecker  v.  Lynch,  1  Bradf.  458; 
Cornwell  v.  Eiker,  2  Dem.  354;  Van  Alst  v.  Hunter,  5  Johns.  Ch.  148; 
Spencer  v.  Moore,  4  Call(Va. )  423 ;  Kirkwoodv.  Gordon,  7  Eich.  L.  474,  62 
Am.  Dec.  418;  Potts  v.  House,  6  Ga.  324,  50  Am.  Dec.  329;  Montague  v. 
Allen,  78  Va.  592,  49  Am.  Eep.  384;  Nicholas  v.  Kershner,  20  W.  Va.  251; 
Kerr  v.  Lunsford,  31  W.Va.  659,  2  L.  E.  A.  668. 

11  Maverick  v.  Eeynolds,  2  Bradf.  360;  Napfle's  Estate,  46  Pliila.  Leg. 
Int.  57. 


276  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

age  and  disease,1  though  accompanied  by  extreme  distress  and 
debility,3  incapacitate  a  party  from  making  a  valid  will  where 
sufficient  intelligence  remains.  And  mere  physical  weakness, 
though  it  renders  the  testator  unable  to  transact  business,  does 
not  of  itself  incapacitate  him  from  making  a  will.2  Nor  does 
physical  weakness  accompanied  by  disease,4  though  the  testator 
was  in  extremis  and  died  a  few  hours  later  from  exhaustion.5 
And  a  person  in  a  feeble  condition  from  a  complication  of  dis- 
eases, whose  ideas  were  confused  and  whose  mind  wandered 
while  under  the  influence  of  opiates,  was  not  incompetent  to  exe- 
cute a  will  where,  when  restored,  which  was  readily  done,  his 
mind  was  clear  and  he  plainly  exhibited  that  he  was  in  possession 
of  all  his  faculties.6  So,  mere  imbecility  or  weakness  of  mind,7 
or  mental  impairment,  from  whatever  cause  it  may  arise,  will  not 
defeat  a  will  where  the  person  making  it  retains  sufficient  under- 
standing to  appreciate  its  effect,  where  no  fraud,  misrepresenta- 
tion, or  undue  influence  is  used,8  where  it  does  not  severely 
impair  the  reasoning  faculties  or  memory,9  though  it  unfits  the 
testator  for  the  management  of  his  estate,10  unless  the  disposition 
attempted  bears  on  its  face  extraordinary  evidence  of  a  deranged 
and   powerless   understanding.11     Nor  will  impaired    mental   or 

1  Rutherford  v.  Morris,  77  El.  397;  Creely  v.  Ostrander,  3  Bradf.  107. 

2  Higgins  v.  Carlton,  28  Md.  115,  92  Am.  Dec.  666;  Chrisman  v.  Chris- 
man,  16  Or.  127. 

3  Brown  v.  Riggin,  94  El.  560;  Kimball  v.  Cuddy,  117  El.  213;  Thomp- 
son v.  Kyner,  65  Pa.  368;  Stoutenburgh  v.  Hopkins,  43  N.  J.  Eq.  577;  Re 
Henry's  Will,  18  Misc.  149. 

4  Runkle  v.  Gates,  11  Ind.  95;  Doyle's  Estate,  7  Pa.  Co.  Ct.  657. 

6  O'Brien  v.  Dwyer,  45  N.  J.  Eq.  689;  Hathorn  v.  King,  8  Mass.  371,  5 
Am.  Dec.  106. 

6  Collins  v.  Brazill,  63  Iowa,  432. 

1  Wade  v.  Holbrook,  2  Redf.  378;  Potts  v.  House,  6  Ga.  324,  50  Am.  Dec. 
329. 

8  Re  Soule,  22  Abb.  N".  C.  236;  Wade  v.  Holbrook,  2  Redf.  378;  Jamison 
v.  Jamison,  3  Houst.  (Del.)  103;  Potts  v.  House,  6  Ga.  324,  50  Am.  Dec.  329; 
Re  Convey 's  Will,  52  Iowa,  197;  Rice  v.  Rice,  50  Mich.  448,  53  Mich.  732; 
Waddington  v.  Buzby,  45  N.  J.  Eq.  173;  Tenbrook  v.  Lee,  5  Clark  (Pa.) 
37;  Tomkins  v.  Tomkins,  1  Bail.  L.  92;  Trezevant  v.  Rains,  85  Tex.  329; 
KimbaU  v.  Cuddy,  117  El.  213. 

9  White  v.  Farley,  81  Ala.  563. 

"  Re  Dyre's  Estate,  12  Phila.  156. 

11  Re  Elliott's  Will,  2  J.  J.  Marsh,  340. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  277 

bodily  powers  affect  the  validity  of  a  will  where  the  testator 
knew  what  he  was  about  and  it  was  his  free  act.1  So,  infirmity 
of  body  and  the  abatement  of  intellectual  vigor,  upon  the  part  of 
a  testator,  usually  attending  old  age  and  disease,  will  not  inca- 
pacitate him  from  making  a  valid  will,2  where  the  disease  with 
which  he  is  afflicted  is  not  calculated  directly  to  affect  his  mind.3 
It  must  amount  to  unsoundness  of  mind  to  affect  the  validity  of 
the  will,  which  means  a  want  of  understanding.4 

§  3.  Failure  of  memory. 

Mere  failure  of  memory  will  not  create  testamentary  incapacity 
unless  it  be  total  and  extend  to  the  testator's  immediate  family 
and  property,6  and  incapacitate  the  testator  from  understanding 
the  nature  or  condition  of  his  property  or  the  relation  of  those 
having  claims  upon  his  bounty.6  Failure  of  memory,  unless  it 
be  entire  or  extend  to  the  immediate  family  and  property  of  the 

1  Horn  v.  Pullman,  72  N.  Y.  269.  And  see  Kinne  v.  Kinne,  9  Conn.  102, 
21  Am.  Dec.  732. 

2Eastis  v.  Montgomery,  95  Ala.  486;  Leeper  v.  Taylor,  47  Ala.  221;  Tay- 
lor v.  Kelly,  31  Ala.  59,  68  Am.  Dec.  150;  McCulloch  v.  Campbell,  49  Ark. 
367;  Lodge  v.  Lodge,  2  Houst.  (Del.)  419;  Conway  v.  Vizzard,  122  Ind.  266; 
Watts  v.  Bullock,  1  Litt.  (Ky.)  252;  Securest  v.  Edwards,  4  Met.  (Ky.) 
163;  Thompson  v.  Ish,  99  Mo.  160;  Westcott  v.  Sheppard,  51  N.  J.  Eq. 
315;  Hampton  v.  Westcott,  49  N.  J.  Eq.  522;  Wintermute  v.  Wilson,  28 
N.  J.  Eq.  437;  Turner  v.  Cheesman,  15  N.  J.  Eq.  243;  Crolius  v.  Stark,  7 
Lans.  311;  Davis  v.  Culver,  13  How.  Pr.  68;  Lawrence  v.  Lawrence,  4  N. 
Y.  Week.  Dig.  299;  Ee  Blair,  16  Daly,  540;  Clarke  v.  Davis,  1  Kedf.  249; 
Carroll  v.  Norton,  3  Bradf.  291;  Tawney  v.  Long,  76  Pa.  106;  Be  Wood- 
fall's  Will,  7  Phila.  528. 

3  Turner  v.  Cheesman,  15  N.  J.  Eq.  243;  Clarke  v.  Davis,  1  Bedf.  249. 

4  Davis  v.  Culver,  13  How.  Pr.  68;  Thompson  v.  Ish,  99  Mo.  160;  Win- 
termute v.  Wilson,  28  N.  J.  Eq.  437;  Leeper  v.  Taylor,  47  Ala.  221. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Testamentary  Ca- 
pacity, chap.  VI. 

6  Yoe  v.  McCord,  74  III.  33;  Be  Storey's  Will,  20  HI.  App.  183;  Lowder 
v.  Lowder,  58  Ind.  538;  Jamison  v.  Jamison,  3  Houst.  (Del.)  108;  Prentis  v. 
Bates,  88  Mich.  567;  Turner  v.  Cheesman,  15  N.  J.  L.  243;  Beynolds  v. 
Boot,  62  Barb.  250;  Yan  Alst  v.  Hunter,  5  Johns.  Ch.  148;  Bleecker  v. 
Lynch,  1  Bradf.  458;  Be  Woods'  Estate,  13  Phila.  236;  Be  Hoppe's  Estate, 
7  W.  N.  C.  523;  Montague  v.  Allen,  78  Ya.  592,  49  Am.  Bep.  384. 

6  Lawrence  v.  Lawrence,  4  N.  Y.  Week.  Dig.  299;  Be  Woodfall's  Will,  7 
Phila.  528;  Be  Woods'  Estate,  13  Phila.  236. 


278  MEDICAL    JURISPRUDENCE    OF    INSANITY". 

testator  to  the  extent  of  rendering  him  unable  to  recall  and  retain 
the  constituents  of  the  business  sufficiently  long  for  its  comple- 
tion, is  not  of  itself  a  legal  standard  of  testamentary  capacity.1 
And  mere  inability  to  remember  the  names  of  relatives  not  fre- 
quently seen,  or  the  Christian  name  of  a  sister  who  is  the  mother 
of  some  of  the  beneficiaries,  does  not  incapacitate  the  party  from 
making  a  will.3  Absolute  loss  of  memory,  however,  destroys 
testamentary  capacity.3 

The  jury  in  a  will  contest  should  not  be  restricted  to  inquiries 
involving  memory  alone  and  not  reason  and  a  knowledge  of  the 
actual  obligations  to  relatives.4  And  an  instruction  that  if  the 
jury  believe  from  the  testimony  of  the  subscribing  witnesses  that 
the  testator  was  of  unsound  mind  or  memory  they  should  find 
against  the  will,  is  erroneous  in  making  an  unwarrantable  dis- 
tinction between  sound  mind  and  sound  memory.6 

§  4.  Eccentricity. 

In  considering  the  question  of  testamentary  capacity,  care  must 
be  taken  that  singularity  or  eccentricity  be  not  confounded  with 
insanity.6  A  testator  may  have  eccentricities  and  peculiarities 
and  still  do  as  he  pleases  with  his  property,  if  they  are  accom- 
panied with  sound  judgment,  discretion,  and  reason.7  And  per- 
verse opinions  and  unreasonable  prejudices  do  not  constitute 
mental  alienation.5  The  question  whether  or  not  a  man  is  differ- 
ent from  other  men,  and  whether  he  indulges  his  humors  in  any 

1  Kramer  v.  "Weinert,  81  Ala.  414. 

2  Kramer  v.  Weinert,  81  Ala.  414;  Martin  v.  Thayer,  37  W.  Ya,  38. 

3  Lamb  v.  Lamb,  105  Ind.  456. 

4  Howard  v.  Coke,  7  B.  Mon.  655. 

5  Toe  v.  McCord,  74  HI.  33. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Memory,  Senility. 

6  Kinne  v.  Kinne,  9  Conn.  102,  21  Am.  Dec.  732  ;  Ekin  v.  McCracken,  11 
Fhila.  534. 

:  Ethridge  v.  Bennett,  9  Houst.  (Del.)  295;  Schneider  v.  Manning,  121  EL 
Potts  v.  House,  6  G-a.  324,  50  Am.  Dec.  329;  Ingoldsby  v.  Ingoldsby,  20 
Grant,  Ch.  131. 

*Be  Gross,  17  N.  Y.  S.  K.  739;  American  Seamen's  Friend  Soc.  v.  Hop- 
per, 33  N.  Y.  619;  Leech  v.  Leech,  5  Clark  (Pa.)  86;  Lee  v.  Lee,  4  McCord, 
L.  183,  17  Am.  Dec.  722;  Mercer  v.  Kelso,  4  Gratt.  106;  Bush  v.  Megee, 
36  Ind.  69;  Gordon  v.  Morrow,  10  Ky.  L.  Kep.  845. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  279 

unaccustomed  ways,  is  not  a  test  of  his  sanity  or  insanity.1  And 
no  eccentricity  or  peculiarity  of  character  or  degree  of  moral  de- 
pravity or  unnatural  feeling  not  amounting  to  destitution  of  rea- 
son or  mental  incompetency  can  be  considered  as  insanity  which 
will  invalidate  a  will.2  And  eccentricity  of  conduct,  and  even  par- 
tial aberration  of  mind  at  other  times,  will  not  affect  testamentary 
capacity  where  the  testator  is  shown  to  have  been  of  sound  and 
disposing  mind  at  the  time  of  making  the  will,3  unless  they  evince 
an  inability  to  make  a  reasonable  disposition  of  property  and  to 
understand  the  nature  and  solemnity  of  the  testamentary  act.4 
The  question  as  to  when  the  bounds  of  eccentricity  are  passed  and 
insanity  commences  depends  upon  the  peculiar  circumstances  of 
each  case,  and  is  to  be  judged  from  the  whole  character  of  the 
person  whose  capacity  is  in  question,  and  from  his  state  and  con- 
dition of  mind,  not  only  with  respect  to  the  immediate  time  in 
question,  but  at  the  immediate  stages  of  his  life.5 

§  5.   Capacity  as  compared  with  the  character  of  the  act. 

The  rule  was  formerly  laid  down  that  the  courts  upon  the  ques- 
tion of  testamentary  capacity  will  never  undertake  to  measure  the 
size,  degree,  or  extent  of  a  man's  understanding,6  and  that  there 
is  no  middle  ground  between  capacity  and  incapacity,7  and  that 
all  persons  are  in  law  either  of  sound  mind  or  of  unsound  mind.8 
Within  this  rule  mere  imbecility  of  mind  on  the  part  of  the  tes- 
tator, however  great,  would  not  avoid  his  will  provided  he  be  not 
an  idiot  or  a  lunatic.9  A  person  is  capable  of  disposing  of  his 
property  by  will  be  he  wise  or  unwise,  unless  totally  deprived  of 

1  Boughton  v.  Knight,  L.  E.  3  Prob.  &  Div.  64. 

2Mullinsv.  CottreU,  41  Miss.  291;  Probst's  Will,  2  Lane.  L.  Kev.  97; 
Lee  v.  Lee,  4  McCord,  L.  183,  17  Am.  Dec.  722. 

3Godden  v.  Burke,  35  La.  Ann.  160;  Wood  v.  Wood,  4  Brewst.  75;  Hoby 
v.  Hoby,  1  Hagg.  Eccl.  Rep.  146. 

4  Wood  v.  Wood,  4  Brewst.  75. 

5  Mudway  v.  Croft,  3  Curt.  Eccl.  Bep.  671. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Eccentricity. 

6  Jamison  v.  Jamison,  3  Houst.  (Del.)  108;  Dufiield  v.  Bobeson,  2  Harr. 
(Del.)  375;  Stewart  v.  Lispenard,  26  Wend.  255. 

"  McElroy  v.  McEboy,  5  Ala.  81. 

8  Aikin  v.  Weckerly,  19  Mich.  482. 

9  Blanchard  v.  Nestle,  3  Denio,  37;  Stewart  v.  Lispenard,  26  Wend.  255. 


280  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

reason.1  And  mere  feebleness  of  intellect  not  amounting  to* 
idiocy  would  not  invalidate  a  will.2  To  invalidate  it  the  incapaci- 
ty must  have  amounted  to  an  entire  loss  of  intellect  so  that  the 

testator  was  unable  to  understand  what  he  was  doino-  or  the  Con- 
s' 

tents  of  the  paper  when  read  to  him,3  and  his  mind  must  have 
been  so  prostrated  as  to  lose  the  government  of  reason  and  com- 
mon sense.4  The  standard  of  testamentary  capacity  was  found  in 
the  question  whether  the  testator  was  compos  mentis  or  non  com- 
pos mentis  according  to  the  legal  meaning  of  the  terms,5  and  the 
term  "  unsound  mind  "  as  used  in  statutes  with  relation  to  wills 
was  of  the  same  signification  as  the  term  non  compos  mentis.*  The 
question  to  be  submitted  to  the  jury  was  whether  the  testator  had 
capacity  to  make  a  will,  and  not  whether  he  had  capacity  to  make 
the  will  in  qnestion,7  and  if  compos  mentis  he  could  make  any  will 
however  complicated,  and  if  non  compos  mentis  he  could  make 
no  will  however  simple.8  The  later  rule,  however,  which  must 
be  deemed  to  be  now  prevalent,  if  not  universal,  is  that  a  total 
deprivation  of  reason  is  not  necessary  to  destroy  testamentary 
capacity,"  and  that  the  impairment  of  the  mind  of  a  testator  need 
not  amount  to  lunacy  or  absolute  imbecility  or  idiocy  in  order  to 
invalidate  his  will,10  and  he  need  not  be  in  such  a  condition  as  to- 
be  an  object  for  a  commission  of  lunacy.11  Within  this  rule  the 
unsoundness  of  mind  which  will  invalidate  a  will  need  not  be 

I  Morris  v.  Stokes,  21  Ga.  152;  Potts  v.  House,  6  Ga.  324,  50  Am.  Dec. 

329;  Stewart  v.  Lispenard,  26  Wend.  255;  Blanchard  v.  Nestle,  3  Denior 
37;  Duffield  v.  Kobeson,  2  Harr.  (Del.)  375. 

^Dornick  v.  Beickenback,  10  Serg.  &  It.  84;  Newkouse  v.  Godwin,  17 
Barb.  236. 

3  Crolius  v.  Stark,  7  Bans.  311. 

4  Deeper  v.  Taylor,  47  Ala.  221. 

b  Delafield  v.  Parish,  25  N.  Y.  9;  Ean  v.  Snyder,  46  Barb.  230;  Blanchard 
v.  Nestle,  3  Denio,  37. 

6  Blanchard  v.  Nestle,  3  Denio,  37.     And  see  Be  Porman,  54  Barb.  274. 

^Yoe  v.  McCord,  74  111.  33;  Delafield  v.  Parish,  25  N.  Y.  9. 

*  Delafield  v.  Parish,  25  N.  Y.  9;  Degg  v.  Myer,  5  Bedf .  628. 

9Stubbs  v.  Houston,  33  Ala.  555;  Abraham  v.  Wilkins,  17  Ark.  292; 
Pelamourges  v.  Clark,  9  Iowa,  1. 

10  Campbell  v.  Campbell,  130  HI.  466,  6  D.  R.  A.  167;  Daniel  v.  Daniel, 
39  Pa.  191;  McTaggart  v.  Thompson,  14  Pa.  149;  Mountain  v.  Bennet,  1 
Cox,  Ch.  Cas.  356. 

II  Mountain  v.  Bennet,  1  Cox,  Ch.  Cas.  356;  Townsend  v.  Bogart,  5  Redf.  93. 


LEGAL   ADJUDICATIONS    IN    CIVIL    CASES.  281 

such  as  to  render  the  testator  incapable  of  understanding  that  he 
is  making  a  disposition  of  his  property  ;  it  is  sufficient  if  he  is  in- 
capable of  comprehending  the  nature  and  extent  of  his  property 
and  of  knowing  what  persons  he  intended  to  provide  for.1  And 
the  test  of  testamentary  capacity  is  whether  the  testator  at  the 
time  of  making  his  will  had  mind  and  memory  sufficient  to  make 
the  will  in  question,2  the  term  compos  mentis  not  being  regarded 
as  a  safe  standard.3  The  strength  of  mind  must  be  equal  to  the 
purpose  to  which  it  is  applied."  And  the  competency  of  the  tes- 
tator should  be  judged  by  the  nature  of  the  act  to  be  done  from 
a  consideration  of  all  the  circumstances,5  the  capacity  to  compre- 
hend a  few  details  and  make  a  simple  will  not  being  sufficient  for 
the  disposal  of  a  large  estate  by  a  complicated  will  requiring  the 
recollection  of  many  facts  and  the  comprehension  of  many  details,8 
and  an  instruction  in  an  action  to  set  aside  a  will  on  the  ground 
of  unsoundness  of  mind,  that  it  is  not  necessary  to  show  such  un- 
soundness had  anything  to  do  with  the  manner  of  disposing  of 
the  property,  is  erroneous  as  recognizing  but  two  conditions  of 
the  human  mind,  one  sane  and  capable  of  doing  all  acts  and  the 
other  insane  and  incapable  of  doing  any  act.7  The  Indiana  stat- 
ute providing  that  persons  of  unsound  mind  cannot  make  a  valid 
will  recognizes  a  condition  not  wholly  sound  when  the  testator 
possesses  scope  of  mind  and  power  to  comprehend  the  nature  of 
the  act  performed.8  So,  generally,  less  capacity  is  required  to 
make  a  codicil  than  to  make  a  will,  though  the  question  is  always 
one  of  fact  for  the  jury.9 

1  Young  v.  Ridenbaugh,  67  Mo.  574. 

^Kempsey  v.  McGinniss,  21  Mich.  123;  Re  Forman,  54  Barb.  274;  Kinlo- 
side  v.  Harrison,  2  Phillim.  Eccl.  Rep.  449. 

3  Townsend  v.  Bogart,  5  Redf.  93. 

4  Turner  v.  Cheesman,  15  N  J.  Eq.  243;  Garrison  v.  Blanton,  48  Tex. 
299;  Delaney  v.  Sauna,  34  Kan.  532. 

6  Trish  v.  Newell,  62  HI.  196;  Marsh  v.  Tyrrell,  2  Hagg.  Eccl.   Rep.  84. 

6  Campbell  v.  Campbell,  130  111.  466,  6  L.  R.  A.  167;  Trish  v.  Newell,  62 
HI.  196;  Sheldon  v.  Dow,  1  Dem.  503.  And  see  Marsh  v.  Tyrrell,  2  Hagg. 
Eccl.  Rep.  84. 

1  Durham  v.  Smith,  120  Ind.  463. 

fe  Young  v.  Miller  (Ind.)  44  N.  E.  757. 

9  Prather  v.  McClelland,  76  Tex.  574. 


282  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

§  6.  Delusion  test. 
Delusion  has  been  held  to  be  the  true  test  of  the  presence  or 
absence  of  insanity,1  and  to  be  the  only  legal  test.2  And  the  rule 
has  been  laid  down  that  delusion  and  insanity  are  almost,  if  not 
altogether,  convertible  terms  so  that  a  patient  under  a  delusion 
on  any  subject  in  any  degree  is  essentially  insane  on  such  subject;3 
and  that  strong,  violent,  and  unjust  prejudice  not  founded  in  de- 
lusion does  not  show  mental  incapacity  which  will  invalidate  a 
will.4  But  an  exception  to  the  delusion  test  has  been  made  in  cases 
of  dementia  or  loss  of  mind  and  intellect,5  and  the  contrary  doc- 
trine, that  the  absence  or  presence  of  delusion  is  not  the  true  test 
of  the  absence  or  presence  of  insanity,6  and  that  delusion  cannot 
be  said  to  be  the  only  legal  test  as  a  rule  of  law,7  would  seem  to 
be  more  in  accordance  with  the  tests  given  below.  The  existence 
of  a  delusion  is  evidence  of  insanity,  but  it  is  not  conclusive.8 

§  7.  Test  of  capacity  for  criminal  responsibility. 
It  has  been  stated  that  the  capacity  and  soundness  of  mind 
requisite  to  make  a  will  are  substantially  the  same  as  those  re- 
quired by  the  rule  of  responsibility  in  criminal  cases,9  but  the  con- 
trary rule  has  been  held,10  and  the  general  rule  would  seem  to  be 
that  a  less  degree  of  incapacity  is  necessary  to  invalidate  a  will 
than  would  be  a  ground  of  acquittal  in  a  criminal  prosecution.11 

1  Dew  v.  Clark,  3  Add.  Eccl.  Eep.  79;  Macklin's  Case,  3  Coopt.  Col.  257; 
Bougkton  v.  Knight,  L.  E.  3  Erob.  &  Div.  64;  Wheeler  v.  Alderson,  3 
Hagg.  Eccl.  Eep.  574;  Stanton  v.  Wetherwax,  16  Barb.  259.  And  see 
Burkhart  v.  Gladish,  123  Ind.  338. 

2  Ee  Forman,  54  Barb.  274. 

3Boiighton  v.  Ejiight,  L.  E.  3  Erob.  k  Div.  64,  28  L.  T.  N.  S.  562;  Smith 
v.  Tebbitt,  L.  E.  1  Erob.  <fc  Div.  401. 

4  Den,  Trumbull,  v.  Gibbons,  22  N.  J.  L.  117. 

5  American  Seamen's  Eriend  Soc.  v.  Hopper,  33  N.  T.  619;  Ee  Shaw's 
Will,  2  Eedf.  107. 

6  Denson  v.  Beazley,  34  Tex.  191. 

''Manhattan  L.  Ins.  Co.  v.  Broughton,  109  U.  S.  121,  27  L.  ed.  878. 

8  Gardner  v.  Lamback,  47  Ga.  133. 

For  Dr.   Clevenger's  discussion   on  this  subject,  see  Delusion,  Tests 
of  Insanity,  chap.  LT. 

9  Delaney  v.  Selina,  34  Kan.  534. 

"Prentis  v.  Bates,  88  Mich.  567.     And  see  Smith  v.  Smith,  75  Ga.  477. 
»  McTaggart  v.  Thompson,  14  Fa.  149. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Responsibility,  chap. 
TI. 


LEGAL    ADJUDICATIONS    IN    CIVIL   OASES.  283 

§  8.  Test  of  capacity  to  contract. 
Under  the  Maryland  statute1  a  person  capable  of  executing  a 
valid  deed  or  contract  has  capacity  to  execute  and  acknowledge  a 
will  or  codicil.3  And  a  testator  must  have  sufficient  capacity  to 
make  a  disposition  of  his  estate  with  judgment  and  understand- 
ing with  reference  to  the  extent  of  his  property  and  the  relative 
claims  of  the  different  persons  who  would  or  might  have  been  the 
objects  of  his  bounty.3  And  it  was  held  in  an  English  case  that 
a  testamentary  disposition  involves  a  larger  and  higher  survey  of 
facts  than  is  needed  to  enter  into  the  ordinary  contracts  of  life,  and 
a  higher  degree  of  capacity  is  required  to  make  a  will  than  an  or- 
dinary contract;4  but  the  judge  who  decided  it  subsequently  ex- 
plained his  decision  in  a  note5  as  meaning,  whatever  is  the  highest 
degree  of  soundness,  that  is  required  to  make  a  will.  So,  the  rule 
has  been  laid  down,  irrespective  of  statutes,  that  the  same  degree 
of  mental  capacity  will  suffice  for  the  making  of  a  valid  will  as 
is  required  for  the  making  of  a  valid  deed  or  contract  ;a  and  that 
knowledge  on  the  part  of  a  testator  as  to  what  he  is  about,  and 
as  to  the  consequences  of  what  he  is  doing,  together  with 
sufficient  capacity  to  contract,  constitutes  testamentary  capacity.7 
But  the  rule  would  appear  to  have  been  better  expressed  in  cases 
holding  that  it  requires  no  greater  mental  capacity  to  make  a 
valid  will  than  to  make  a  valid  deed  or  contract,8  as  the  capacity 
to  make  a  contract  as  a  test  of  testamentary  capacity  has  been 
repudiated,9  the  weight  of  authority  holding  that  one  may  make 
a  valid  will  though  his  capacity  is  less  than  would  be  required 

'  Maryland  act  1798,  chap.  101. 

2  Tyson  v.  Tyson,  37  Md.  567. 

3Higgins  v.  Carlton,  28  Md.  115,  92  Am.  Dec.  666;  Davis  v.  Calvert,  5 
Gill  &  J.  300,  25  Am.  Dec.  282. 

4Boughton  v.  Knight,  L.  E.  3  Prob.  &  Div.  64,  28  L.  T.  N.  S.  562. 

5Boughton  v.  Knight,  L.  K.  3  Prob.  &  Div.  72,  28  L.  T.  N.  S.  562. 

i  Stewart  v.  Elliott,  2  Mackey,  307;  McElroy  v.  McElroy,  5  Ala.  81;  Cole- 
man v.  Robertson,  17  Ala.  84. 

1  Comstock  v.  Hadlyme  Eccl.  Soc.  8  Conn.  254,  20  Am.  Dec.  100. 

8  Schneider  v.  Manning,  121  111.  376;  Chandler  v.  Barrett,  21  La.  Ann. 
58,  99  Am.  Dec.  701;  Bice  v.  Bice,  50  Mich.  448,  53  Mich.  432;  Ford  v. 
Ford,  7  Humph.  92. 

°Kirkwood  v.  Gordon,  7  Bich.  L.  474,  62  Am.  Dec.  418;  Maddox  v.  Mad- 
-dox,  114  Mo.  35,  35  Am.  St.  Bep.  735. 


284  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

to  make  a  contract  or  deed,1  or  manage  his  estate,2  as  in  making 
contracts  the  parties  stand  at  arms'  length  and  are  opposed  to 
each  other,3  and  that  a  will  should  not  he  set  aside  on  as  slight 
evidence  of  mental  incapacity  as  would  be  sufficient  to  overturn 
a  contract  or  deed  or  a  gift  inter  vivos.4  Failure  to  instruct  the 
jury,  however,  that  less  capacity  would  suffice  to  make  a  valid 
will  than  would  be  required  in  making  contracts,  is  not  error 
where  no  special  charge  was  requested.5  Xor  would  such  an  in- 
struction be  necessary,  as  the  jury  would  not  be  presumed  to 
know  what  degree  of  capacity  the  law  requires  to  make  a  con- 
tract.6 

§  9.  Test  of  capacity  to  transact  ordinary  ousiness. 
Sufficient  mind  and  memory  for  the  transaction  of  ordinary 
business  have  been  adopted  by  some  of  the  cases  as  the  test  of 
testamentary  capacity.7  Within  this  rule  it  is  sufficient  if  the  tes- 
tator is  capable  of  acting  rationally  in  the  ordinary  affairs  of  life,6" 
and  capacity  to  know  and  understand  the  extent  of  his  property,. 
who  his  relatives  are  and  their  claims  upon  his  bounty,  and  how 

1  Lemon  v.  Jenkins,  48  Ga.  313;  Potts  v.  House,  6  Ga.  324,  50  Am.  Dec. 
329;  Meeker  v.  Meeker,  74  Iowa,  352;  Wise  v.  Foote,  81  Ky.  10;  Howard 
v.  Coke,  7  B.  Mon.  655;  Aubert  v.  Aubert,  6  La.  Ann.  104;  Prentis  v.  Bates, 
88  Mick.  567;  Brinkman  v.  Bueggesick,  71  Mo.  553;  Stewart  v.  Lispenard, 
26  Wend.  255;  Paine  v.  Boberts,  82  N.  C.  451;  Be  McCann,  2  Pa.  Dist.  B. 
181;  Kirkwood  v.  Gordon,  7  Bich.  L.  478,  62  Am.  Dec.  418;  Prather  v. 
McClelland,  76  Tex.  574;  Vance  v.  Upson,  66  Tex.  476;  Converse  v.  Con- 
verse, 21  Yt.  168,  52  Am.  Dec.  58;  Nicholas  v.  Kerskner,  20  W.  Ya.  251; 
Kerr  v.  Limsford,  31  W.  Ya.  659,  2  L.  B.  A.  668;  Den,  Stevens,  v.  Yan- 
cleve,  4  Wash.  C.  C.  262;  Harrison  v.  Bowan,  3  Wash.  C.  C.  580. 

2  Howard  v.  Coke,  7  B.  Mon.  655;  Brinkman  v.  Bueggesick,  71  Mo.  553; 
Harrison  v.  Bowan,  3  Wash.  C.  C.  580. 

8  Wise  v.  Poote,  81  Ky.  10. 

4  Clarke  v.  Sawyer,  3  Sandf.  Ch.  351. 

5  Cockrill  v.  Cox,  65  Tex.  676. 

6  Brown  v.  Mitchell,  88  Tex.  350. 

■  Coleman  v.  Bobertson,  17  Ala.  84;  Keithley  v.  Stafford,  126  HI.  507; 
Brown  v.  Biggin,  94  HL  560;  Carpenter  v.  Calvert,  83  HI.  62;  Butherford 
v.  Morris,  77  HI.  397;  Meeker  v.  Meeker,  75  HL  260;  Be  Storey's  Will,  20 
HI.  App.  183;  Beed's  Will,  2  B.  Mon.  79;  Barnes  v.  Barnes,  66  Me.  286; 
Harvey  v.  Sullens,  46  Mo.  147,  2  Am.  Bep.  491;  Tom  kins  v.  Tomkins,  1 
Bail.  L.  92. 

6  Brown  v.  Biggin,  94  HI.  560. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  285 

lie  wishes  to  dispose  of  his  property,  and  hold  all  of  these  things 
in  his  mind  at  the  same  time,  is  not  necessary.1  What  is  neces- 
sary is  that  the  testator  should  have  capacity  to  reason  correctly 
and  understand  the  relation  of  cause  and  effect  in  ordinary  busi- 
ness affairs.2  And  buying  and  selling  property,  settling  accounts, 
collecting  and  paying  out  and  borrowing  and  loaning  money,  and 
making  contracts  and  conveyances,  constitute  the  transaction  of 
ordinary  business,  the  capacity  to  do  which  shows  capacity  to  dis- 
pose of  property  by  will.3  Many  of  the  later  cases,  however,  have 
combined  the  test  of  capacity  to  transact  ordinary  business  with 
a  requirement  of  capacity  to  understand  the  business  engaged  in 
in  making  the  will,4  and  to  understand  and  comprehend  the  dis- 
position made  of  the  property  and  the  nature  and  effect  of  the 
provisions  of  the  will,5  and  to  select  the  objects  of  one's  bounty.6 
And  the  test  of  capacity  to  transact  ordinary  business  has  been 
expressly  repudiated  by  some  of  the  cases,7  holding  that  less  ca- 
pacity is  required  to  make  a  valid  will  than  to  transact  ordinary 
business ; 8  and  that  a  person  is  not  necessarily  incapacitated  from 
making  a  will  because  his  mind  and  memory  are  so  much  impaired 
as  to  render  him  incompetent  to  manage  his  ordinary  affairs ; 9 
and  that  a  testator  need  not  have  such  capacity  as  would  justify 
his  engaging  in  complicated  and  intricate  business ; J0  and  that  one 
who  has  sufficient  knowledge  and  memory  to  fully  and  rationally 
comprehend  the  effect  of  what  he  is  doing  and  appreciate  his  re- 
lations to  the  natural  objects  of  his  bounty,  and  understand  the 
character  and  effect  of  the  provisions  of  his  will,  is  competent  to 

1  Carpenter  v.  Calvert,  83  HI.  62. 
"  Meeker  v.  Meeker,  75  111.  260. 

3  Francis  v.  Wilkinson,  147  111.  370;  Meeker  v.  Meeker,  75  111.  260;  Eeed's 
Will,  2  B.  Mon.  79;  Hoban  v.  Campau,  52  Mich.  346. 

4  Schneider  v.  Manning,  121  HI.  376. 

5  Keithley  v.  Stafford,  126  HI.  507;  Farmer  v.  Farmer,  129  Mo.  530;  My- 
ers v.  Hauger,  98  Mo.  433;  Benoist  v.  Murrin,  58  Mo.  307;  Harvey  v.  Sul- 
lens,  56  Mo.  372. 

6  Freeman  v.  Easly,  117  HI.  317;  Norton  v.  Paxton,  110  Mo.  456. 
1  Stubbs  v.  Houston,  33  Ala.  555. 

8  Thompson  v.  Kyner,  65  Pa.  368. 

9  Whitney  v.  Twombly,  136  Mass.  145;  He  Dyre's  Estate,  12  Phila.  156. 
1,0  Converse  v.  Converse,  21  Vt.  168,  52  Am.  Dec.  53. 


286  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

make  one,  though  he  may  not  be  capable  of  managing  business. 
generally.1 

§  10.   Test  of  capacity  to  understand  the  transaction. 

Probably  as  an  outgrowth  of  the  doctrine  that  the  capacity  to 
perform  a  testamentary  act  should  conform  to  its  difficulty  and 
intricacy,  many  of  the  cases  have  referred  the  degree  required  to 
the  particular  transaction  in  question,  stating  the  test  to  be 
whether  the  testator's  mind  and  memory  were  sufficiently  sane  to 
enable  him  to  understand  the  business  in  which  he  was  engaged  f 
whether  he  was  able  to  understand  that  he  was  disposing  of  his 
estate  by  will  and  to  whom  he  was  giving  it;2  and  whether  he 
appreciated  the  effects  of  the  transaction.4     And  knowledge  on 

1  St.  Leger's  Appeal,  34  Conn.  434,  91  Am.  Dec.  735;  Kinne  v.  Kinne,  9 
Conn.  102,  21  Am.  Dec.  732;  Nicholas  v.  Kershner,  20  W.  Ya.  251;  Kerr 
v.  Lunsford,  31  W.  Ya.  659,  2  L.  B.  A.  668.  And  see  tests  given  in  subse- 
quent sections. 

For  Dr.  Clevenger's  disoussion  on  this  subject,  see  Imbecility,  Paretic 
Dementia,  Syynj^toms,  Senility. 

2Stubbs  v.  Houston,  33  Ala.  555;  Abraham  v.  Wilkins,  17  Ark.  292; 
Ethridge  v.  Bennett,  9  Houst.  (Del.)  295;  Lodge  v.  Lodge,  2  Houst.  (Del.) 
419;  Cordrey  v.  Cordrey,  1  Houst.  (Del.)  269;  Sutton  v.  Sutton,  5  Han*. 
(Del.)  459;  Chandler  v.  Ferris,  1  Harr.  (Del.)  454;  CampbeU  v.  Camp- 
bell, 130  HI.  466,  6  L.  B.  A.  167;  Yoe  v.  McCord,  73  HI.  33;  Pittard  v. 
Foster,  12  HI.  App.  133;  Conway  v.  Yizzard,  122  Hid.  266;  Bunkle  v. 
Gates,  11  Ind.  95;  Webber  v.  Sullivan,  58  Iowa,  260;  He  Convey's  Will, 
52  Iowa,  197;  Kingsbury  v.  Whitaker,  32  La.  Ann.  1055,  36  Am.  Eep. 
278;  Young  v.  Eidenbaugh,  67  Mo.  574;  McClintock  v.  Curd,  32  Mo. 
411,  4  L.  E.  A.  738;  Middleditck  v.  Williams,  45  K  J.  Eq.  726,  4  L. 
E,  A.  738;  Frost  v.  Wheeler,  43  N.  J.  Eq.  573;  Den,  Trumbull,  v.  Gib- 
bons, 22  K  J.  L.  117;  Andress  v.  Weller,  3  N.  J.  Eq.  604;  Ee  SneUing's 
Will,  136  N.  Y.  515;  Ee  Flansburgh,  82  Hun,  49;  Barnhardt  v.  Smith,  86 
N.  C.  473;  Paine  v.  Eoberts,  82  N".  C.  451;  Ee  McCullough's  Will,  35  Pittsb. 
L.  J.  169;  Cornelius  v.  Cornelius,  7  Jones,  L.  593;  Home  v.  Home,  9  Led. 
L.  99;  Zeltner  v.  Bodman  German  Protestant  Widow's  Home,  1  Ohio 
Dec.  306;  Chrisman  v.  Chrisman,  16  Or.  127;  Shaver  v.  McCarthy,  110  Pa. 
339;  Thompson  v.  Kyner,  65  Pa.  368;  Ee  Eestine,  3  W.  X.  C.  27;  Wisener 
v.  Maupin,  2  Baxt.  342. 

3  Jamison  v.  Jamison,  3  Houst.  (Del.)  108;  Cordrey  v.  Cordrey,  1  Houst. 
(Del.)  269;  Ee  Eestine,  3  W.  N.  C.  27;  Ee  Eodger's  Estate,  19  W.  X.  C.  383; 
Garrison  v.  Blanton,  48  Tex.  299. 

4  CampbeU  v.  Campbell,  130  HI.  466,  6  L.  E.  A.  167;  Webber  v.  Sulli- 
van, 58  Iowa,  260;  Ee  Convey's  Will,  52  Iowa,  197;  Kingsbury  v.  Whita- 
ker, 32  La.  Ann.  1055,  36  Am.  Eep.  278;  Ee  Flansburgh,  82  Him,  49. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  2S7 

the  part  of  a  testator  of  what  he  was  about,  and  how  he  was  dispos- 
ing of  his  property,  and  a  purpose  to  do  so,  was  held  to  consti- 
tute testamentary  capacity.1  It  is  capacity  to  understand  the 
business  engaged  in  which  is  required,  and  not  merely  capacity 
to  understand  the  act  which  he  is  performing,  that  act  being  sim- 
ply the  making  and  signing  of  a  will.2  But  it  is  sufficient  if  he 
has  knowledge  to  comprehend  the  condition  of  his  property,  and 
the  scope,  meaning,  and  effect  of  the  provisions  of  his  will.3  He 
must  have  ability  to  remember  and  call  to  mind  all  the  items  of 
his  property,  and  to  know  and  appreciate  as  well  as  to  remember 
the  value  of  each  item,  or  at  least  each  subject  of  ownership.4 
And  he  must  be  capable  of  weighing  to  a  reasonable  degree  the 
consequences  of  his  will  and  its  effect  upon  his  estate  and  family  ;b 
and  have  sufficient  understanding  to  determine  whether  the  will 
makes  the  desired  disposition.6  But  he  need  not  be  competent  to 
view  his  will  with  the  eye  of  a  lawyer  and  comprehend  the  legal 
effect  of  its  provisions ;  it  is  sufficient  if  he  has  such  mind  and 
memory  as  will  enable  him  to  understand  the  elements  of  which 
it  is  composed  and  the  disposition  of  his  property  in  its  simple 
forms.7  The  ability  of  a  testator  to  criticise  accurately  the  terms 
and  provisions  of  his  proposed  will  or  the  estates  created  thereby 
is  not  a  correct  test  of  testamentary  capacity.8  And  testamentary 
capacity  is  to  be  determined  by  the  capacity  of  the  testator  to 
understand  what  he  is  doing,  and  not  by  his  actual  knowledge  or 
understanding  thereof.9 

§11.   Combined  test ;  capacity  to  understand  claims  to  bounty. 

The  test  which  is  best  supported  by  authority,  and  which  may 

be  deemed  to  be  the  general  rule  of  testamentary  capacity,  com- 

1  Sutton  v.  Sutton,  5  Harr.  (Del.)  459;  Horn  v.  Pullman,  72  N.  Y.  269. 

2  Pittard  v.  Foster,  12  111.  App.  142. 

3  Cornwell  v.  Piker,  2  Dem.  354. 

4  Reichenbach  v.  Puddach,  127  Pa.  564. 
6  Re  Convey's  Will,  52  Iowa,  197. 

6  Young  v.  Ridenbaugh,  67  Mo.  574. 

1  Harrison  v.  Rowan,  3  Wash.  C.  C.  580;  Young  v.  Ridenbaugh,  67  Mo. 
574. 

8  Gaither  v.  Gaither,  20  Ga.  709. 

9  Brown  v.  Mitchell,  75  Tex.  9. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Senility,  Senile  De- 
mentia, Imbecility. 


288  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

"bines  the  requirement  of  capacity  to  understand  the  transaction 
with  ability  to  understand  the  nature  and  merit  of  the  claims  of 
persons  who  are  or  might  naturally  be  the  objects  of  the  testator's 
bounty.  This  test  is,  whether  the  testator  had  capacity  to  under- 
stand the  nature  of  the  business  in  which  he  was  engaged  and  abil- 
ity to  recollect  and  comprehend  the  condition  of  the  property  he 
wished  to  dispose  of,  and  understand  and  decide  upon  the  method  of 
■  its  distribution,  and  knowledge,  memory,  and  capacity  to  compre- 
hend his  relations  to  the  persons  who  are  or  might  naturally  be 
the  objects  of  his  bounty,  and  the  relative  merits  of  their  claims ;' 

fastis  v.  Montgomery,  95  Ala.  486;  Knox  v.  Knox,  95  Ala.  495;  Taylor 
v.  KeUy,  31  Ala.  59,  68  Am.  Dec.  150;  Kramer  v.  Weinert,  81  Ala.  414; 
Bulger  v.  Boss,  98  Ala.  267;  McCulloch  v.  CampbeU,  49  Ark.  367;  Cordrey 
v.  Cordrey,  1  Houst.  (Del.)  269;  Dunham's  Appeal,  27  Conn.  192;  Stancellv. 
Kenan,  33  Ga.  56;  Kagan  v.  Eagan,  33  Ga.  Supp.  106;  Hall  v.  HaU,  18  Ga. 
40;  Boe  v.  Taylor,  45  111.  485;  Trish  v.  Newell,  62  El  196;  Burkhart  v. 
Gladish,  123  Ind.  338;  Lowder  v.  Lowder,  58  Ind.  538;  Bush  v.  Megee,  36 
Ind.  69;  Meeker  v.  Meeker,  74  Iowa,  352;  Godden  v.  Burke,  35  La.  Ann. 
160;  Brown  v.  Ward,  53  Md.  393,  36  Am.  Bep.  422;  Whitney  v.  Twombly, 
136  Mass.  145;  Beaubien  v.  Cicotte,  12  Mich.  459;  McHugh  v.  Fitzgerald, 
103  Mich.  21;  Young  v.  Otto,  57  Minn.  307;  Couch  v.  Gentry,  113  Mo. 
248;  Thompson  v.  Ish,  99  Mo.  160;  Jackson  v.  Hardin,  83  Mo.  175;  Young 
v.  Eidenbaugh,  67  Mo.  574;  Howell  v.  Taylor,  50  N.  J.  Eq.  428;  Westcottv. 
Sheppard,  51  N.  J.  Eq.  315;  Hampton  v.  Westcott,  49  N.  J.  Eq.  522;  Smith 
v.  Smith,  48  N.  J.  Eq.  566;  Clifton  v.  Clifton,  47  N.  J.  Eq.  227;  Be  Lee, 
•46  N.  J.  Eq.  193;  McCoon  v.  Allen,  45  N.  J.  Eq.  708;  Waddington  v. 
Busby,  45  N.  J.  Eq.  173;  O'Brien  v.  Dwyer,  45  N.  J.  Eq.  689;  Stouten- 
burgh  v.  Hopkins,  43  N.  J.  Eq.  577;  Bennett  v.  Bennett,  50  N.  J.  Eq.  439J 
Lowe  v.  Williamson,  2  K  J.  Eq.  82;  Sloan  v.  MaxweU,  3  N.  J.  Eq.  563; 
Andress  v.  Weller,  3  N.  J.  Eq.  604;  Howell  v.  Taylor,  50  N.  J.  Eq. 
428;  Swenarton  v,  Hancock,  9  Abb.  K  C.  326;  Be  Soule,  22  Abb.  N.  C. 
236;  Lawrence  v.  Lawrence,  4  N.  Y.  Week.  Dig.  299;  Leech  v.  Leech,  5 
Clark  (Pa.)  86;  Tenbrook  v.  Lee,  5  Clark  (Pa.)  37;  Be  Blah-,  16  Daly,  540; 
Kinne  v.  Johnson,  60  Barb.  69;  Beynolds  v.  Boot,  62  Barb.  250;  Watson  v. 
Donnelly,  28  Barb.  653;  Be  Henry's  Will,  18  Misc.  149;  Snyder  v.  Sher- 
jnan,  23  Hun,  139;  Forman  v.  Smith,  7  Lans.  443;  Be  Mabie,  5  Misc.  179; 
Townsend  v.  Bogart,  5  Bedf.  93;  Wade  v.  Holbrook,  2  Bedf.  378;  Be 
Wheeler,  5  Misc.  279;  Be  Kiedaisch's  Will,  2  Connoly,  438;  Clark  v. 
Fisher,  1  Paige,  171,  19  Am.  Dec.  402;  Bost  v.  Bost,  87  N.  C.  477;  Clark 
-v.  Ellis,  9  Or.  128;  Hubbard  v.  Hubbard,  7  Or.  42;  Chrismanv.  Chrisman, 
16  Or.  127;  Shaver  v.  McCarthy,  110  Pa.  339;  Wilson  v.  MitcheU,  101  Pa. 
495;  Tawney  v.  Long,  76  Pa.  106;  Pidcock  v.  Potter,  68  Pa.  348,  8  Am. 
-Bep.  181;  Stevenson  v.  Stevenson,  33  Pa.  471;  Daniel  v.  Daniel,  39  Pa. 


LEGAL    ADJUDICATIONS    IN    CIVIL   CASES.  289 

and  capable  of  making  a  rational  selection  among  them,1  accord- 
ing to  a  settled  purpose  of  his  own,2  and  of  knowing  whether  he 
has  done  anything  for  any  such  persons  having  claims  upon  his 
justice  or  generosity,3  and  of  keeping  such  facts  in  his  mind  long 
enough  to  have  his  will  prepared  and  executed.4  He  must 
have  capacity  to  recollect  the  claims  of  those  who  are  excluded 
from  participating  in  his  bounty  as  well  as  those  who  participate 
in  it,"  and  be  competent  to  understand  the  scope  and  meaning  of 
the  provisions  of  his  will 6  and  the  manner  in  which  it  distributes 
his  property,7   and  have  capacity  to  comprehend  the  relation  of 

191;  Ke  Doyle's  Estate,  7  Pa.  Co.  Ct.  657;  Horbach  v.  Denniston,  3 
Pittsb.  49;  Philadelphia  Trust  &  S.  D.  Co.  v.  Drinkhouse,  17  Phila.  23; 
Ee  Woodf all's  Will,  7  Phila.  528;  Wood  v.  Wood,  4  Brewst.  75;  Be  Rodg- 
er's Estate,  19  W.  N.  C.  383;  Re  McKim's  Estate,  9  Pa.  Co.  Ct.  209; 
Kirkwood  v.  Gordon,  7  Rich.  L.  474,  62  Am.  Dec.  418;  Prather  v.  McClel- 
land, 76  Tex.  574;  Trezevant  v.  Rains,  85  Tex.  329;  Converse  v.  Converse, 
21  Yt.  168,  52  Am.  Dec.  58;  Harrison  v.  Rowan,  3  Wash.  C.  C.  580;  Mar- 
tin v.  Thayer,  37  W.  Va.  38;  Nicholas  v.  Kershner,  20  W.  Ya.  251;  Kerr  v. 
Lunsford,  31  W.  Ya.  659,  680,  2  L.  R.  A.  668;  Ballantine  v.  Proudfoot,  62 
Wis.  216;  Re  Farnsworth's  Will,  62  Wis.  474;  Holden  v.  Meadows,  31  Wis. 
284;  Re  Blakely's  Will,  48  Wis.  294;  Den,  Stevens,  v.  Vancleve,  4  Wash.  C. 
C.  262;  Greenwood  v.  Greenwood,  3  Curt.  Eccl.  Rep.  337;  Ingoldsby  v.  In- 
goldsby,  20  Grant,  Ch.  131;  Sefton  v.  Hopwood,  1  Fost.  &  F.  578;  Goldie 
v.  Murray,  6  Jur.  608;  Banks  v.  GoodfeUow,  22  L.  T.  N.  S.  820;  Harwood 
v.  Baker,  3  Moore,  P.  C.  282. 

1  Forman  v.  Smith,  7  Lans.  443;  Kinne  v.  Johnson,  60  Barb.  69;  Clark 
v.  Fisher,  1  Paige,  171,  19  Am.  Dec.  402;  Hall  v.  Hall,  18  Ga.  40;  Stancell 
v.  Kenan,  33  Ga.  56;  Smith  v.  Smith,  48  N.  J.  Eq.  566;  Stoutenburgh  v. 
Hopkins,  43  N.  J.  Eq.  577;  Lawrence  v.  Steel,  66  N.  C.  584;  Re  Farns- 
worth's Will,  62  Wis.  474. 

2  Re  Shropshire's  Will,  5  J.  J.  Marsh.  15;  Newcomb  v.  Newcomb,  16  Ky. 
L.  Rep.  376;  Philhps  v.  Phillips,  81  Ky.  329. 

3  Reynolds  v.  Root,  62  Barb.  250. 

4Townsend  v.  Bogart,  5  Redf.  93;  Re  Henry's  Will,  18  Misc.  149. 
6McCulloch  v.  Campbell,  49  Ark.  367;   Meeker  v.  Meeker,  74  Iowa,  352; 
Beaubien  v.  Cicotte,  12  Mich.  459;  Goldie  v.  Murray,  6  Jur.  608. 

6  Re  Wheeler,  5  Misc.  279;  Wade  v.  Holbrook,  2  Redf.  378;  Snyder  v. 
Sherman,  23  Hun,  139;  Bost  v.  Bost,  87  N.  C.  477;  Chrisman  v.  Chrisman, 
16  Or.  127;  Sefton  v.  Hopwood,  1  Fost.  &  F.  578. 

7  McCoon  v.  Allen,  45  N.  J.  Eq.  708;  Re  Lee,  46  N.  J.  Eq.  193;  O'Brien 
v.  Dwyer,  45  N.  J.  Eq.  689;  Clifton  v.  Clifton,  47  N.  J.  Eq.  227;  Hampton 
v.  Westcott,  49  N.  J.  Eq.  522;  Westcott  v.  Sheppard,  51  N.  J.  Eq.  315; 
Cordrey  v.  Cordrey,  1  Houst.  (Del.)  269;  Pidcock  v.  Potter,  68  Pa.  348,  8  Am. 

19 


290  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

each  of  these  factors  to  each  other ;'  though  it  is  not  necessary 
that  he  should  be  able  to  collect  all  these  in  one  comprehensive 
view.2 

In  passing  upon  testamentary  capacity,  however,  it  is  not  neces- 
sary to  show  that  the  testator  actually  understood  the  business 
in  which  he  was  engaged  and  comprehended  his  property  and 
recollected  the  natural  objects  of  his  bounty ;  it  is  sufficient  if  he 
was  capable  of  doing  so.3  And  he  need  not  have  a  recollection 
of  the  property  he  intends  to  dispose  of  or  the  persons  related  to 
him,  when  he  intends  to  give  his  whole  estate  to  a  stranger  to  the 
exclusion  of  his  relatives.4  JSor  is  it  necessary  that  he  should 
name  all  of  his  children  or  give  each  of  them  a  portion  ox  his 
estate ;  it  is  sufficient  if  he  was  mentally  capable  of  understand- 
ing the  disposition  he  was  making  and  acting  freely.5  Xor 
is  it  necessary  that  he  should  correctly  ascertain  the  legal 
status  of  each  person  who  apparently  stands  in  a  natural  rela- 
tion to  him,6  or  understand  and  appreciate  the  legal  effect  of 
all  the  provisions  of  the  will.7  And  he  need  not  be  capable  of 
discussing  the  feelings  and  relations,  connections  and  obligations 
of  family  and  blood,  and  of  recollecting  the  number,  condition., 
and  extent  of  those  who  are  the  proper  objects  of  his  bounty,, 
and  also  of  weighing  their  deserts  with  respect  to  conduct  and 
capacity,  remembering  all  and  forgetting  none.8  Xor  need  he 
understand  the  number  and  condition  of  his  relatives  or  their 

Kep.  181;  Thompson  v.  Kyner,  65  Pa.  368;  Shaver  v.  McCarthy,  110  Pa. 
339;  Webber  v.  Sullivan,  58  Iowa,  260;  Reynolds  v.  Eoot,  62  Barb.  250; 
Franke  v.  Shipley,  22  Or.  104;  Lawrence  v.  Steel,  66  N.  C.  584. 

1  Westcott  v.  Sheppard,  51  X.  J.  Eq.  315;  Hampton  v.  Westcott,  49  X. 
J.  Eq.  522;  Clifton  v.  Clifton,  47  N.  J.  Eq.  227;  Ee  Lee,  46  N.  J.  Eq.  193;. 
O'Brien  v.  Dwyer,  45  N.  J.  Eq.  689;  Knox  v.  Knox,  95  Ala.  495;  Kramer 
v.  Weinert,  81  Ala.  414. 

5  Pidcock  v.  Potter,  68  Pa.  348,  8  Am.  Rep.  181;  Shaver  v.  McCarthy,  110 
Pa.  339;  McMasters  v.  Blair,  29  Pa.  298. 

3  Trezevant  v.  Rains,  85  Tex.  329;  Kerr  v.  Lunsford,  31  W.  Va.  659,  680, 
2  L.  R.  A.  668. 

4  Stevenson  v.  Stevenson,  33  Pa.  469. 

6  Kerr  v.  Lunsford,  31  W.  Ya.  659,  680,  2  L.  R.  A.  668. 
6  Smith  v.  Smith,  48  N.  J.  Eq.  566. 

'  Barker  v.  Comins,  110  Mass.  477. 

8  Couch  v.  Gentry,  113  Mo.  24S.  And  see  McMasters  v.  Blair,  29  Pa. 
298. 


LEGAL   ADJUDICATIONS    IN    CIVIL   CASES.  291 

relative  claims  upon  his  bounty,  or  know  and  understand  the 
reason  for  giving  or  withholding  his  bounty  as  to  any  and  every 
one  of  them,1  or  recall  all  that  he  had  done  for  each  of  the  per- 
sons coming  within  the  reasonable  range  of  his  bounty.2  It  is 
only  necessary  that  he  should  understand  fairly  and  rationally 
the  nature  of  his  property  and  the  disposition  he  wishes  to 
make.3 

§  12.  Test  of  capacity  to  collect,  hold,  and  consider  the  facts. 

Many  well-considered  cases  have  laid  down  the  rule  that  a  tes- 
tator must  have  sufficient  active  memory  to  collect  in  his  mind 
without  prompting  the  parts  or  elements  of  the  business  to  be 
transacted,  and  to  hold  them  in  his  mind  a  sufficient  length  of 
time  to  perceive  at  least  their  obvious  relations  to  each  other, 
and  to  be  able  to  form  some  rational  judgment  in  regard  to 
them,4  and  to  dictate  his  will.5  It  is  not  sufficient  that  the  testa- 
tor is  merely  able  to  answer  familiar  and  usual  questions.6  This 
rule  has  been  criticised,  however,  as  not  being  well  adapted  to 
practical  use  as  a  test  of  testamentary  capacity,7  and  as  requiring 
too  high  a  degree  of  mental  capacity.8 

§  13.  Time  of  application  of  tests. 
The  point  of  time  to  be  considered  at  which  the  capacity  of 

1  Spratt  v.  Spratt,  76  Mich.  384. 

2  Couch  v.  Gentry,  113  Mo.  248. 

3  Philadelphia  Trust  &  S.  D.  Co.  v.  Drinkhouse,  17  Phila.  23;  Pidcock  v. 
Potter,  68  Pa.  348,  8  Am.  Eep.  181;  Shaver  v.  McCarthy,  110  Pa.  339; 
Ee  Kodger's  Estate,  19  W.  N.  C.  383. 

4  Bulger  v.  Ross,  98  Ala.  267;  McCulloch  v.  Campbell,  49  Ark.  367;  Yoe 
v.  McCord,  73  m.  33;  Burkhart  v.  Gladish,  123  Ind.  338;  Lowder  v.  Low- 
der,  58  Ind.  538;  Rush  v.  Megee,  36  Ind.  69;  McHugh  v.  Fitzgerald,  103 
Mich.  21;  Spratt  v.  Spratt,  76  Mich.  364;  Aikin  v.  Weckerly,  19  Mich.  482; 
Van  Guysling  v.  Van  Kuren,  35  N.  Y.  70;  Delafield  v.  Parish,  25  N.  Y.  9; 
Re  Mabie,  5  Misc.  179;  Prather  v.  McClelland,  76  Tex.  574;  Mc  Master  v. 
Scriven,  85  Wis.  162;  Re  Lewis's  Will,  51  Wis.  101;  Holden  v.  Meadows, 
31  Wis.  284. 

6  Spratt  v.  Spratt,  76  Mich.  384. 
6  Aikin  v.  Weckerly,  19  Mich.  482. 
1  St.  Leger's  Appeal,  34  Conn.  434. 
8  Trish  v.  Newell,  62  IU.  196. 


292  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

the  testator  is  to  be  tested  is  that  at  which  the  will  was  executed,1 
and  the  capacity  of  the  testator  to  make  a  will  is  to  be  determined 
by  what  happened  at  that  time  rather  than  by  what  happened  at 
other  times.2  And  where  the  testator  was  rational,  intelligent, 
and  understood  what  he  was  doing  when  the  will  was  made,  it  is 
valid,  however  incompetent  he  may  have  been  at  other  times.3 
"Where  there  are  one  or  more  codicils  to  a  will,  however,  capacity 
at  the  date  of  the  execution  of  one  of  them  renders  that  act  valid 
as  well  as  all  preceding  acts.4  And  the  will  of  a  testator  who 
had  sufficient  strength  and  soundness  of  mind  to  make  a  dispo- 
sition of  his  property  when  he  gave  instructions  for  preparing  it, 
and  actual  intent  to  execute  it  when  written  as  his  will,  is  valid 
and  entitled  to  probate,  though  he  had  grown  much  worse  and 
did  not  have  testamentary  capacity  when  it  was  signed.5 

§  14.  Partial  insanity  defined. 

Partial  insanity  or  monomania  is  a  perversion  of  the  under- 
standing in  regard  to  a  single  object  or  a  small  number  of  objects 
with  a  predominance  of  mental  excitement.6  A  morbid  affection 
of  the  mind,  consisting  in  a  mental  or  moral  perversion,  or  both, 
in  regard  to  some  particular  subject  or  class  of  subjects.7  It  is 
not  some  intermediate  stage  in  the  development  of  mental  de- 
rangement, but  a  disturbance  at  some  particular  point,  not 
involving  the  mind  at  any  other  point.8  Monomania  and  eccen- 
tricity differ  in  that  the  monomaniac  has  become  one  by  a  change 
of  the  character,  while  the  eccentric  man  always  was  singular  in 

'  Terry  v.  Buffington,  11  Ga.  337,  56  Am.  Dec.  423;  Toe  v.  McCord,  73 
111.  33;  Holloway  v.  Galloway,  51  111.  159;  Clark  v.  Ellis,  9  Or.  128;  Beich- 
enback  v.  Euddach,  127  Pa.  564;  Thompson  v.  Kyner,  65  Pa.  368;  Ee  Mc- 
Cullough's  Will,  35  Pittsb.  L.  J.  169;  Martin  v.  Thayer,  37  W.  Va.  38; 
Nicholas  v.  Kershner,  20  W.  Va.  251;  Ken-  t.  Lunsford,  31  W.  Ya.  659,  680, 
2  L.  E.  A.  668;  Den,  Stevens,  v.  Vancleve,  4  Wash.  C.  C.  262;  White  v. 
Wilson,  13  Ves.  Jr.  87. 

2  Clark  v.  Davis,  1  Eedf.  249;  Godden  v.  Burke,  35  La.  Ann.  160. 

s  Philadelphia  Trust  &  S.  D.  Co.  v.  Drinkhouse,  17  Phila.  23. 

*  Brown  v.  Biggin,  94  El.  560;  Mairs  v.  Freeman,  3  Eedf.  181. 

5  Weems  t.  Weems,  19  Md.  334. 

6  Ee  Gannon's  Will,  3  Misc.  329. 
1  Chaney  v.  Bryan,  16  Lea,  67. 

8  Taylor  v.  Trich,  165  Pa.  586. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  293 

his  ideat5  and  actions,  though  eccentric  habits  suddenly  acquired 
are  presumptive  evidence  of  insanity.1 

§  15.  What  partial  insanity  affects  testamentary  capacity. 

The  doctrine  was  maintained  by  some  of  the  earlier  English 
cases  that  the  mind  of  man  was  indivisible,  and  the  expression 
"  partial  insanity  "  is  an  incorrect  phrase,  and  that  a  mind  which 
is  actually  unsound  at  all  times  upon  one  subject  cannot  be 
deemed  sound  on  other  subjects,2  and  that  a  will  made  by  a  per- 
son having  such  a  mind,  though  apparently  rational  and  proper, 
and  though  the  infirmity  had  no  bearing  upon  the  testamentary 
disposition  and  was  only  discoverable  when  the  mind  was  ad- 
dressed to  certain  subjects  to  the  exclusion  of  all  others,  was 
invalid.3  But  this  doctrine  was  repudiated  later  in  a  well-con- 
sidered and  authoritative  case.*  And  the  rule  may  now  be  said 
to  be  universal,  or  nearly  so,  that  the  theory  of  medical  science, 
that  there  is  no  such  thing  as  partial  insanity  and  that  a  man  is 
either  sane  or  insane,  is  not  true  in  law ; 6  and  that  to  establish 
unsoundness  of  mind  it  is  not  necessary  that  it  should  be  general, 
it  is  sufficient  if  proved  to  exist  on  one  or  more  subjects,  though 
in  all  other  respects  the  individual  may  conduct  himself  with  the 
utmost  propriety.6  Within  this  rule  partial  insanity  or  mono- 
mania invalidates  a  will,  which  is  its  direct  offspring,7  or  where 
the  will  was  in  any  way  the  effect  of  or  the  result  of  such  insanity, 
though  the  testator's  general  capacity  was  unimpeached.8  And 
where  a  testator  is  a  monomaniac  it  must  appear  that  his  will  was 

1  Ekin  v.  McCracken,  11  Phila.  534. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Partial  Insanity, 
Monomania. 

2  Waring  v.  Waring,  12  Jur.  947,  6  Moore,  P.  C.  341. 

3  Waring  v.  Waring,  12  Jur.  947,  6  Moore,  P.  C.  341;  Smith  v.  Tebbitt, 
L.  E.  1  Prob.  &  Div.  398,  16  L.  T.  N.  S.  841. 

4  Banks  v.  Goodfellow,  22  L.  T.  N.  S.  820. 
6  Ee  Blakely's  Will,  48  Wis.  294. 

6  Fowlis  v.  Davidson,  6  Notes  of  Cases,  461. 

1  Merrill  v.  Eolston,  5  Eedf.  220;  Cotton  v.  Ulmer,  45  Ala.  378,  6  Am. 
Eep.  703;  Thomas  v.  Carter,  170  Pa.  272;  Lucas  v.  Parsons,  24  Ga.  640,  71 
Am.  Dec.  147;  Potts  v.  House,  6  Ga.  324,  50  Am.  Dec.  329;  Dew  v.  Clark, 
1  Add.  Eccl.  Eep.  279,  3  Add.  Eccl.  Eep.  79;  Puryear  v.  Eeese,  6  Coldw.  21. 

8  Gardner  v.  Lamback,  47  Ga.  133. 


294 


-MEDICAL    JURISPRUDENCE    OF    INSANITY. 


in  no  way  the  result  of  or  connected  with  the  mania.1  But  a  will 
to  be  invalidated  by  partial  insanity  or  monomania  must  have 
been  directly  produced  by  it,2  and  it  must  have  amounted  to  such 
an  insane  delusion  as  renders  the  testator  incapable  of  reasoning 
on  that  particular  subject,  and  shows  that  he  assumes  to  believe 
to  be  true  that  which  has  no  foundation  in  reason  or  fact ; 3  and 
be  such  that  the  morbid  image  in  his  mind  is  connected  by  him 
with  and  has  perverted  his  judgment  in  relation  to  his  acts  which 
are  drawn  in  question.4  And  it  must  relate  to  the  person  to  be 
affected  as  well  as  the  subject-matter  to  be  disposed  of,5  though 
an  heir  at  law  may  complain  of  any  mania  on  the  part  of  his  tes- 
tator which  diverts  the  inheritance  from  him,  whether  it  was 
directed  against  him  or  another.6 

Where  a  testator  possesses  reason  and  capacity  on  the  subject 
of  disposing  of  his  property  by  will  the  mere  fact  that  he  does 
not  have  reason  and  capacity  on  some  other  subject  is  not  suffi- 
cient to  invalidate  his  will.7  A  derangement  of  the  faculties  can- 
not operate  to  incapacitate  a  person  to  make  a  will  where  it  does 
not  render  him  incapable  of  acting  rationally  in  the  ordinary  af- 
fairs of  life  or  manifest  itself  in  the  testamentary  provisions/ 

The  phrase  "  of  unsound  mind,"  in  the  Indiana  statute  with 
reference  to  competency  to  make  a  will,  however,  is  held  to  in- 
clude every  species  of  unsoundness  of  mind  whether  partial  or 
complete.9  And  an  instruction  in  a  will  contest,  that  although  a 
person  may  be  to  some  extent  insane  when  he  executes  a  will 

1  Gardner  v.  Lamback,  47  Ga.  133. 
8  Benoist  v.  Murrin,  58  Mo.  307. 

3  Haines  v.  Hayden,  95  Mich.  332. 

4  Owing's  Case,  1  Bland,  Ch.  370,  17  Am.  Dec.  311 

5  Gardner  y.  Lamback,  47  Ga.  133. 

6  Wetter  v.  Habersham,  60  Ga.  194. 

"James  v.  Langdon,  7  B.  Mon.  193;  "Kingsbury  v.  Whitaker,  32  La.  Ann. 
1055,  36  Am.  Rep.  278;  Lucas  v.  Parsons,  24  Ga.  640,  71  Am.  Dec.  147; 
Wetter  x.  Habersham,  60  Ga.  194.  And  see  Ee  Bodger's  Estate,  19  W."  N. 
C.  383. 

*Fraserv.  Jennison,  42  Mich.  206;  Stackhonse  v.  Horton,  15  N.  J.  Eq. 
203;  Pidcock  v.  Potter,  68  Pa.  348,  8  Am.  Rep.  181;  Banks  v.  GoodfeUow, 
22  L.  T.  X.  S.  820. 

9WiUett  v.  Porter,  42  Ind.  250;  Eggers  v.  Eggers,  57  Ind.  461;  Burkhart 
v.  Gladish,  123  Ind.  338. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  295 

such  insanity  will  not  avoid  it  unless  it  is  shown  to  have  entered 
into  or  affected  it,  is  erroneous.1 

§  16.  Insane  delusions  defined. 
An  insane  delusion  is  a  spontaneous  conception  and  acceptance 
as  a  fact  of  that  which  has  no  real  existence  except  in  the  imagin- 
ation and  the  persistent  adherence  to  it  against  all  evidence ; 2  a 
belief  in  the  existence  of  supposed  facts  in  which  no  rational  per- 
son would  believe ; 3  a  conception  originating  spontaneously  in 
the  mind  without  evidence  of  any  kind  to  support  it  which  can 
be  accounted  for  on  no  reasonable  hypothesis,  having  no  founda- 
tion in  reality  and  springing  from  disease  or  a  morbid  condition 
of  the  mind  ; 4  a  belief  in  things  impossible,  or  in  things  so  improb- 
able under  the  surrounding  circumstances  that  no  person  of  sound 
mind  would  give  them  credit.5  Whenever  a  person  believes 
something  extravagant  to  exist  against  all  evidence,  which  has  no 
existence  in  fact  except  in  his  own  imagination,  and  he  is  incapa- 
ble of  being  permanently  reasoned  out  of  the  existence  of  such 
conception,  he  has  an  insane  delusion  which  will  invalidate  a  will 
affected  by  such  extravagant  belief,6  however  logically  he  may 
conduct  himself  upon  the  assumption  of  its  existence.7 

1  Eggers  v.  Eggers,  57  Ind.  461. 

*  Smith  v.  Smith,  48  N.  J.  Eq.  566;  Bush  v.  Megee,  36  Ind.  69;  Waring 
v.  Waring,  12  Jur.  947;  Middleditch  v.  Williams,  45  N.  J.  Eq.  726,  4  L.  E. 
A.  738. 

3Ee  Forman,  54  Barb.  274;  Prather  v.  McClelland,  76  Tex.  574;  Vance 
v.  Upson,  66  Tex.  476;  Taylor  v.  Trich,  165  Pa.  586. 

4  Potter  v.  Jones,  20  Or.  239,  12  L.  B.  A.  161;  Middleditch  v.  Williams, 
45  N.  J.  Eq.  726,  4  L.  B.  A.  738. 

5  Prinsep  v.  Dyce,  Sombre,  10  Moore,  P.  C.  232;  Biggs  v.  American  Home 
Missionary  Soc.  35  Hun,  656. 

6Mullinsv.  Cottrell,  41  Miss.  291;  Benoist  v.  Murrin,  58  Mo.  307;  Mid- 
dleditch v.  Williams,  45  N.  J.  Eq.  726,  4  L.  B.  A.  738;  American  Seamen's 
Friend  Soc.  v.  Hopper,  33  N.  Y.  619;  Be  Keeler's  WiU,  12  N.  Y.  S.  B.  148; 
Be  White,  121  N.  Y.  406;  Be  Henry's  Will,  18  Misc.  149;  Stanton  v.  Weth- 
erwax,  16  Barb.  259;  Be  Shaw's  Will,  2  Eedf.  107;  Philadelphia  Trust  & 
S.  D.  Co.  v.  Drinkhouse,  17  Phila.  23;  Boughton  v.  Knight,  L.  B.  3  Prob. 
&  Div.  64;  Dew  v.  Clark,  3  Add.  Eccl.  Eep.  79. 

7  American  Seamen's  Friend  Soc.  v.  Hopper,  33  N.  Y.  619;  Ee  White,  121 
N.  Y.  406;  Be  Shaw's  Will,  2  Eedf.  107;  Potter  v.  Jones,  20  Or.  239,  12 
E.  B.  A.  161. 

For  Dr.  Clevenger's  treatment  of  the  subject,  see  Delusions,  chap.  VIII. 


296  MEDICAL    JURISPRUDENCE    OF   INSANITY. 

§  17.  Effect  on  testamentary  capacity. 
The  rule  that  to  invalidate  a  will  there  must  be  want  of  capacity 
which  prevents  the  testator  from  reasoning  correctly  and  from 
understanding  the  relation  of  cause  and  effect  in  ordinary  busi- 
ness affairs  is  directed  to  insanity  and  testamentary  capacity  as  a 
general  question,  and  does  not  apply  to  morbid  or  insane  delusions 
in  the  mind  of  the  testator  or  to  reasoning  on  his  part  from  facts 
and  premises  which  exist  only  in  a  disordered  imagination.1 
Where  a  will  is  claimed  to  be  invalid  because  of  an  insane  delu- 
sion the  mental  capacity  of  the  testator  is  to  be  measured  by  the 
relation  of  the  delusion  to  the  testamentary  act.2  The  true  in- 
quiry is  whether  the  will  was  the  result  of  an  insane  delusion,3 — 
whether  the  testator  was  the  victim  of  such  a  delusion  as  con- 
trolled his  actions  and  rendered  him  insensible  to  the  ties  of  blood 
and  kindred.4  Opinions  and  delusions  entertained  by  him  do  not 
affect  the  validity  of  his  will,  unless  they  have  unsettled  his  mind 
and  controlled  the  disposition  of  his  property.6  And  the  sanity 
of  a  testator  laboring  under  an  insane  delusion  is  to  be  tested  by 
directing  his  attention  to  the  subject-matter  of  such  delusion.* 
Thus,  a  testamentary  act  which  is  shown  to  be  the  product  of  a 
delusion  over  which  it  exercised  a  controlling  influence  will  be 
declared  invalid  though  the  testator  was  sane  in  all  other  respects.7 
The  fact  that  a  testator  is  capable  of  transacting  complicated  and 

1  American  Bible  Soc.  v.  Price,  115  HI.  623;  Be  Brinton's  Estate,  13 
Phila.  234. 

2  Be  Vedder,  6  Dem.  92. 

3  Be  Keeler's  Will,  12  N.  T.  S.  E.  148;  Tawney  v.  Long,  76  Pa.  106. 
4McClary  v.  Stull,  44  Neb.  175.     And  see  Boe  v.  Taylor,   45  HI.  485; 

Whitney  v.  Twombly,  136  Mass.  145;  Prather  v.  McCleUand,  76  Tex.  574; 
Vance  v.  Upson,  66  Tex.  476;  BaUantine  v.  Proudfoot,  62  Wis.  216;  Banks 
v.  Goodfellow,  22  L.  T.  N.  S.  820. 

6  Taylor  v.  Trich,  165  Pa.  586;  Shreiner  v.  Shreiner,  178  Pa.  57;  Be  Hen- 
ry's Will,  18  Misc.  149. 

6  Nichols  v.  Binns,  1  Swab.  &  T.  239. 

'Florey  v.  Florey,  24  Ala.  241;  Lucas  v.  Parsons,  24  Ga.  640,  71  Am. 
Dec.  147;  American  Bible  Soc.  v.  Price,  115  HI.  623;  Bush  v.  Megee,  36 
Ind.  69;  Townshend  v.  Townshend,  7  Gill,  10;  Biggs  v.  American  Tract 
Soc.  95  N.  Y.  503;  Stanton  v.  Wetherwax,  16  Barb.  259;  Ee  Gannon's  Will, 
3  Misc.  329;  Thomas  v.  Carter,  170  Pa.  272;  Tawney  v.  Long,  76  Pa.  106; 
Philadelphia  Trust  &  S.  D.  Co.  v.  Drinkhouse,  17  Phila.  23;  Be  Drink- 
house's  Estate,  14  Phila.  291;  Ee  Brimton's  Estate,  13  Phila.  234. 


LEGAL    ADJUDICATIONS    IN    CIVIL   CASES. 


297 


important  business  involving  the  exercise  of  considerable  power  of 
intellect  does  not  negative  the  existence  of  delusions  which  would 
unfit  him  to  make  a  will.1  When  it  is  ascertained  that  a  will  is 
the  offspring  of  an  insane  delusion  it  should  be  declared  void  with- 
out inquiring  what  the  testator  would  or  would  not  have  done  if 
he  had  been  of  sound  mind.2  And  a  special  verdict  that  a  testa- 
tor was  of  unsound  mind  when  he  made  his  will,  and  that  he 
failed  to  make  provisions  for  designated  persons  by  reason  of  an 
insane  delusion,  is  sufficient  to  sustain  an  order  avoiding  the  pro- 
bate where  it  was  supported  by  evidence.3 

The  mere  existence  of  a  delusion,  however,  is  not  sufficient 
to  invalidate  a  will;  its  connection  with  the  will  must  be  made 
manifest  and  shown  to  have  influenced  its  provisions.4  An 
insane  delusion  on  the  part  of  a  testator  will  not  affect 
the  validity  of  his  will  where  it  was  in  no  way  connected 
with  the  subject  or  objects  of  the  testamentary  act.6  And  in 
such  case  an  omission  to  call  the  attention  of  the  jury  to 
the  delusion  will  not  affect  the  verdict.6  Nor  will  an  insane  de- 
lusion affect  the  validity  of  a  will  where  it  did  not  enter  into  the 
making  of  it  and  influence  the  dispositions  made,7  or  where  the 
peculiar  views  of  the  testator  were  not  such  as  to  prevent  the  ex- 
ercise of  a  rational  judgment  touching  the  disposition  of  his  prop- 
erty,8 as  in  case  of  a  delusion  as  to  the  possession  of  a  large 
amount  of  property,9  or  that  the  services  of  the  testator  were  re- 

1  Smee  v.  Smee,  L.  E.  5  Prob.  Div.  84;  Banks  v.  Goodfellow,  22  L.  T. 
N.  S.  820;  Morse  v.  Scott,  4  Dem.  507. 

2  Cotton  v.  Ulmer,  45  Ala.  378,  6  Am.  Eep.  706. 

3  Ee  Carpenter's  Estate,  94  Cal.  406. 
♦Potter  v.  Jones,  20  Or.  239,  12  L.  E.  A.  161. 

6  Potter  v.  McAlpine,  3  Dem.  108;  Ee  Frieke,  47  N.  Y.  S.  E.  10;  Kings- 
bury v.  Whitaker,  32  La.  Ann.  1055,  36  Am.  Eep.  278;  Boardman  v.  Wood- 
man, 47  N.  H.  120;  Hollinger  v.  Syms,  37  N.  J.  Eq.  221;  Lucas  v.  Parsons, 
24  Ga.  640,  71  Am.  Dec.  147;  Puryear  v.  Eeese,  6  Coldw.  21;  Jones  v. 
Goodrich,  5  Moore,  P.  C.  16;  Smee  v.  Smee,  L.  E.  5  Prob.  Div.  84;  Banks 
v.  Goodfellow,  22  L.  T.  N.  S.  820. 

6  Banks  v.  Goodfellow,  22  L.  T.  N.  S.  820. 

•"Murfett  v.  Smith,  L.  E.  1  Prob.  Div.  116;  Middleditch  v.  Williams,  45 
N.  J.  Eq.  726,  4  L.  E.  A.  738;  Potter  v.  Jones,  20  Or.  239, 12  L.  E.  A.  161; 
Brace  v.  Black,  125  HI.  33. 

8McClary  v.  Stull,  44  Neb.  175;  Schneider  v.  Manning,  121  HI.  376. 

9  Ee  Berrien,  24  N.  Y.  S.  E.  332. 


298  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

quired  by  the  government,  and  that  he  was  likely  to  be  appointed 
to  office.1  And  a  will  should  not  be  set  aside  because  the  testator 
was  subject  to  delusions,  where  it  is  manifest  that  the  delusions 
did  not  affect  its  provisions.3  So,  a  testator  may  make  a  valid  will 
though  he  has  delusions  remaining  in  his  mind  at  the  time  which 
are  latent  but  capable  of  being  revived  and  produced  at  any 
moment  if  anything  should  occur  to  bring  his  thoughts  to  the 
subject.3 

A  delusion  which  will  invalidate  a  will  must  not  only  appear 
to  have  been  the  inducing  cause  to  it,  but  it  must  also  be 
shown  to  have  existed  at  the  time  it  was  made.4  But  a  jury 
would  not  generally  be  justified  in  coming  to  the  conclusion 
that  a  delusion  calculated  to  influence  the  testator  in  making  his 
will  was  latent  at  the  time  so  as  to  leave  the  testator  free  from 
any  influence  arising  from  it.8  A  delusion  resulting  from  disease 
which  was  intermittent,  where  there  were  times  when  the  testator 
was  rational,  will  not  invalidate  his  will  where  it  does  not  appear 
that  he  labored  under  any  delusion  at  any  time  in  respect  to  any 
person  who  would  otherwise  probably  be  the  object  of  his  bounty.8 
And  an  instruction  with  reference  to  an  insane  delusion  which 
ignores  the  contingency  that  the  delusion  might  be  found  to  have 
wholly  or  permanently  disappeared  before  the  will  was  made,  in 
which  case  it  should  not  be  regarded  with  distrust,  is  erroneous.' 

§  18.  What  delusions  destroy  capacity. 

A  delusion  which  will  invalidate  a  will  must  be  such  as  to 

amount  to  an  insane  delusion.8     Mere  absurd  opinions,  however 

unfounded,  are  not  insane  delusions.8     There  must  be  something 

more  than  a  mere  mistaken  notion  on  the  part  of  the  testator  as 

1  Rice  v.  Eice,  53  Mich.  432. 

2  Eice  v.  Eice,  50  Mich.  448,  53  Mich.  432;  Thompson  v.  Thompson,  21 
Earb.  107;  Dunham's  Appeal,  27  Conn.  192. 

3  Ingoldsby  v.  Ingoldsby,  20  Grant,  Ch.  131. 

4  Philadelphia  Trust  k  S.  D.  Co.  v.  Drinkhouse,  17  Phila.  23. 

5  Banks  v.  Goodfellow,  22  L.  T.  X.  S.  820. 

6  Lee  v.  Scudder,  31  X.  J.  Eq.  634. 

7  Manley  v.  Staples,  65  Yt.  370. 

8Eobinson  y.  Adams,  62  Me.  369,  16  Am.  Eep.  473;  Turner  v.  Busk,  53 
Md.  65;  Burkhart  v.  Gladish,  123  Ind.  338;  Fulleck  v.  Allinson,  3  Hagg. 
Eccl.  Eep.  527. 

9  Ditchburn  v.  Fearn,  6  Jur.  201;  Be  White,  121  X.  X.  406. 


LEGAL   ADJUDICATIONS    IN   CIVIL    CASES.  299 

to  the  feelings,  intentions,  or  behavior  of  his  relatives  with  refer- 
ence to  himself  or  his  property,1  where  there  is  nothing  irrational 
about  it  and  no  proof  that  evidence  was  ever  presented  to  him  tend- 
ing to  show  that  he  was  mistaken  in  respect  to  it,2  or  that  it  could 
not  have  been  changed  by  evidence.3  And  a  mistaken  notion  on 
the  part  of  a  wife  that  her  husband  intended  to  convert  her  separate 
estate  to  his  own  use,  under  the  influence  of  which  she  excluded 
him  from  participation  in  her  property,  does  not  invalidate  her 
will."  Nor  does  a  mistaken  notion  as  to  the  disease  with  which 
he  was  afflicted.6  And  the  fact  that  a  testator  entertains  ani- 
mosity, cherishes  prejudices,  and  nourishes  his  wrath  against  his 
heirs  at  law,  and  is  guided  and  controlled  by  his  prejudices  in  the 
disposition  of  his  property,  does  not  per  se  destroy  his  testamen- 
tary capacity,  though  such  prejudices  may  have  been  unfounded.8 
So,  where  a  testator  has  actual  ground  for  supposition  as  to  the 
existence  of  something  in  which  he  believes,  though  in  fact  not 
well  founded  and  disbelieved  by  others,  the  misapprehension  of 
the  fact  is  not  an  insane  delusion  which  will  invalidate  his  will,7 
though  it  may  be  erroneous  and  unjust  and  even  cruel  and  un- 
natural,8 and  though  he  may  have  been  influenced  to  exclude  per- 
sons from  sharing  in  his  bounty  who  would  not  have  otherwise 
been  excluded." 

Where  the  beliefs  or  aversions  of  a  testator  concerning  a  per- 
son who  might  have  been  a  beneficiary  under  his  will  were 
formed  from  an  apparent  cause  leading  on  his  part  to  an  unjust 
and  erroneous  view,  it  shows  an  unfortunate  error  of  judgment 
or  want  of  reasoning  power,  but  not  an  absolute  want  of  intellect 
on   the  subject,   or  that  his  conclusions  were   formed   without 

]  HaU  v.  Hall,  38  Ala.  131;  Ee  Carpenter's  Estate,  94  Cal.  406;  Ee  Tracy, 
11  N.  Y.  S.  E.  103;  Ee  Keeler,  3  N.  Y.  Supp.  629. 

9  Ee  Tracy,  11  N.  Y.  S.  E.  103;  Ooit  v.  Patclien,  77  N.  Y.  533. 

3  Bull  v.  Wheeler,  6  Dem.  123. 

4  Mosser  v.  Mosser,  32  Ala.  551. 

6  Ee  Storey's  Will,  20  HI.  App.  183. 

6  Carter  v.  Dixon,  69  Ga.  82. 

1  Stackhouse  v.  Horton,  15  N.  J.  Eq.  202. 

*  Mullins  v.  Cottrell,  41  Miss.  291. 

'  Martin  v.  Thayer,  37  W.  Va.  38. 


300 


MEDICAL    JURISPRUDENCE    OF    INSANITY. 


foundation  in  fact.1  Thus,  an  opinion  on  the  part  of  a  testator 
that  one  who  might  have  been  a  beneficiary  under  his  will  had 
poisoned  his  dog  is  not  an  insane  delusion  which  will  invalidate 
his  will  where  it  was  based  on  rational  grounds  and  shared  by 
others.2  And  an  erroneous  opinion  of  the  testatrix,  otherwise 
competent,  as  to  the  conduct  and  affections  of  her  husband  and 
some  of  her  children,  is  not  an  insane  delusion  which  will  affect 
her  will,  where  she  and  her  husband  frequently  quarreled  and  a 
son  had  committed  an  assault  upon  her;3  nor  is  an  opinion  en- 
tertained by  a  testatrix  that  she  was  morally  indebted  to  a  favor- 
ite daughter  for  protection  and  support,  where  controversies  had 
existed  in  the  family  for  years  and  the  daughter  had  taken  an 
active  part  with  her  mother  ;4  or  a  belief  upon  the  part  of  a  tes- 
tator that  his  children  had  deeply  wronged  him  and  testified 
falsely  against  him  and  were  trying  to  rob  him  of  his  property, 
in  consequence  of  which  he  disinherits  them,  where  most  of  the 
disinherited  children  were  witnesses  in  a  divorce  case  brought  by 
his  wife  against  him,  and  the  facts  led  him  to  believe  that  they 
were  all  opposed  to  him.5  The  test  question  is,  Could  any  man 
in  the  possession  of  his  senses  believe  in  such  a  state  of  facts  V 
And  to  invalidate  a  will  it  must  appear  that  the  testator  was  sub- 
ject to  a  delusion  as  to  facts  within  his  own  observation  in  the 
existence  of  which  he  actually  believed,  which  a  rational  man 
from  the  use  of  his  senses  under  the  same  circumstances  would 
have  known  not  to  exist.7  The  delusion  must  be  one  not  only 
founded  in  error,  but  also  without  evidence  of  its  truth  or  its  ex- 
istence, against  the  clearest  evidence  to  the  contrary ;  *  and  it  is 
not  established  where  the  court  is  able  to  understand  how  a  per- 
son so  situated  might  believe  in  its  truth  and  still  be  in  the  posses- 

1  Potter  v.  Jones,  20  Or.  239,  12  L.  E.  A.  161;  Ke  Keeler,  3  N.  Y.  Supp. 
629. 

-  Fulleck  t.  Allinson,  3  Hagg.  Eccl.  Kep.  527. 

3  Coit  v.  Patchen,  77  N.  Y.  533.     And  see  Re  Blakely's  Will,  48  Wis.  294. 

4  Coit  v.  Patchen,  77  N.  Y.  533. 

5  Ee  Cline's  Will,  24  Or.  175. 

6Boughton  v.  Knight,  L.  B.  3  Prob.  &  Div.  64. 
'•  Ditchburn  v.  Fearn,  6  Jnr.  201. 

5  Potter  v.  McAlpine,  3  Dem.  108;  Merrill  v.  Eolston,  5  Eedf.  220.     See 
also  Greenwood's  Case,  1  Add.  Eccl.  Eep.  279,  note. 


LEGAL   ADJUDICATIONS    IN    CIVIL    CASES.  301 

sion  of  his  senses.1  It  is  not  sufficient  to  show  that  the  belief 
was  not  well  founded,  or  that  it  was  based  on  slight  and  inade- 
quate evidence.2  It  is  of  the  essence  of  an  insane  delusion  that 
it  has  no  basis  in  reason,  and  cannot  be  dispelled  by  reason,  and 
is  thus  capable  of  being  cherished  side  by  side  with  other  ideas 
with  which  it  is  rationally  inconsistent.'  And  while  the  nonex- 
istence of  the  facts  believed  should  be  put  in  doubt  the  jury  may 
find  an  insane  delusion  where  the  testator  believed  what  could 
not  possibly  be  true,  though  no  positive  or  direct  evidence  could 
be  offered  to  show  the  falsity  of  the  belief.4  Gross  exaggera- 
tion of  slight  instances,  however,  may  amount  to  a  delusion  as  to 
facts,  and  be  an  insane  delusion.5  And  a  belief  in  something 
which  no  sane  person  would  believe  in  is  unequivocal  evidence 
of  insanity,  though  there  might  be  a  shadow  of  evidence  that  the 
facts  existed.8 

§  19.  Delusions  as  to  the  person  affected. 
The  general  rule  is  that  an  insane  delusion  relating  to  persons 
who  would  naturally  be  the  objects  of  the  testamentary  bounty 
of  the  person  entertaining  it,  and  which  affects  or  may  have 
affected  the  provisions  of  his  will,  is  sufficient  to  invalidate  it.7 
Thus,  a  will  is  invalidated  by  an  insane  delusion  upon  the  part 
of  the  testator  that  his  children  were  his  enemies  and  were  com- 
bined against  him  to  rob  him  of  his  property,  where  it  led  him  to 
disinherit  them  ; 8  and  by  a  mistaken  impression  that  a  niece,  who 
was  the  testator's  only  next  of  kin,  had  wilfully  occasioned  the 
death  of  his  sister  and  made  an  attempt  upon  his  own  life  in 
order  to  get  possession  of  his  property ; 9  and  by  a  delusion  that 

1  Phillips  v.  Chater,  1  Dem.  533. 

2  Clapp  v.  Fullerton,  34  N.  Y.  190,  90  Am.  Dec.  681. 

3  Smith  v.  Tebbitt,  L.  E.  1  Prob.  &  Div.  401. 

4  Eobinson  v.  Adams,  62  Me.  369,  16  Am.  Eep.  473. 
B  Ditchburn  v.  Fearn,  6  Jur.  201. 

6  Eiggs  v.  American  Home  Missionary  Soc.  35  Hun,  656. 

1  American  Bible  Soc.  v.  Price,  115  HI.  623;  Johnson  v.  Moore,  1  Litt. 
372;  American  Seamen's  Friend  Soc.  v.  Hopper,  33  N.  Y.  619;  Ee  Keeler's 
Will,  12  N.  Y.  S.  E.  148;  Ee  Shaw's  Will,  2  Eedf.  107;  Thomas  v.  Carter, 
170  Pa.  272;  Leech  v.  Leech,  5  Clark  (Pa.)  86;  Chaney  v.  Bryan,  16  Lea, 
63;  Dew  v.  Clark,  3  Add.  Eccl.  Eep.  79;  Dew  v.  Clark,  5  Euss.  Ch.  163. 

8  Morse  v.  Scott,  4  Dem.  507. 

»  Fowlis  v.  Davidson,  6  Notes  of  Cases,  461. 


302  MEDICAL    JURISPRUDENCE    OF    INSANITF. 

the  testator's  father  and  sister,  who  were  his  only  heirs  at  law, 
hated  him  because  of  a  difference  in  religious  belief,  and  that  the 
father  had  driven  him  from  home,  refusing  him  the  means  of 
getting  an  education,  and  wanted  to  get  him  out  of  the  way  to 
get  his  property.1  So,  a  will  is  rendered  wholly  inoperative  by  a 
groundless  opinion  on  the  part  of  the  testator  that  his  youngest 
child  was  illegitimate,  which  his  friends  are  unable  to  change, 
in  consequence  of  which  he  refuses  to  make  any  provision  for  it.* 
And  a  belief  by  a  testator  that  the  Masons  intended  to  kill  and 
rob  him,  and  that  his  two  brothers,  who  were  his  next  of  kin,  were 
connected  with  them,  is  sufficient  to  invalidate  his  will.3  And  a 
delusion  out  of  which  the  testator  refuses  to  be  reasoned,  that 
relatives  for  whom  he  would  have  naturally  provided  are  impos- 
tors and  his  enemies,  and  not  related  to  him,  and  are  trying  to  get 
his  property,  is  sufficient  to  invalidate  his  will.4  Nor  will  a  will 
be  permitted  to  stand  where  the  testatrix  labored  under  the  mis- 
taken idea  that  her  only  living  daughter  and  her  daughter's  hus- 
band had  illtreated  her  and  purposely  made  her  uncomfortable, 
and  permitted  their  children  to  annoy  her,  and  attempted  to 
poison  her,5  or  where  a  testator  entertains  a  delusion  that  his 
wife  and  children  were  conspiring  against  him  and  had  persecuted 
him,  and  had  incited  others  to  do  so,  and  attempted  to  poison 
him  and  send  him  to  a  lunatic  asylum,  pursuant  to  which  he  par- 
tially disinherits  them;6  or  where  he  entertains  a  delusion  that 
they  have  conspired  to  break  up  his  family  and  destroy  his 
authority  and  injure  him  personally  and  in  reputation  and  prop- 
erty, and  to  poison  him,  and  that  they  are  therefore  not  proper 
recipients  of  any  of  his  estate.7  And  a  delusion  without  founda- 
tion, that  the  testator's  daughter  was  an  inmate  of  a  house  of  ill- 
fame,  will  invalidate  a  will  disinheriting  her,  though  he  was 
entirely  sane  upon  other  subjects.8     Prejudices  on  the  part  of  a 

1  Colhoun  v.  Jones,  2  Eedf.  34. 
8  Bell  v.  Lee,  28  Grant,  Ch.  439. 

3  Lathrop  v.  Borden,  5  Hnn,  560. 

4  Be  Shaw's  Will,  2  Eedf.  107. 

6  Ballantine  v.  Proudfoot,  62  Wis.  216. 

6  Be  Kahn,  1  Connoly,  510. 

1  Biggs  v.  American  Tract  Soc.  95  N.  Y.  503. 

8  Bivard  v.  Bivard  (Mich.)  2  Det.  L.  N.  1003. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES. 


303 


testator,  however,  against  one  who  is  the  natural  object  of  his 
bounty,  though  upon  improper  grounds,  are  not  sufficient  to  in- 
validate a  will  if  they  were  such  as  might  reside  in  a  sound 
mind ; J  nor  will  a  delusion  that  his  children  had  treated  him 
badly.3  And  a  delusion  with  respect  to  his  nieces  and  nephews, 
who  would  naturally  have  been  the  objects  of  his  testamentary 
bounty,  will  not  invalidate  his  will  where  it  cannot  be  seen  that 
its  testamentary  provisions  were  affected  by  it.3  Nor  will  an  in- 
sane delusion  on  the  part  of  a  testator  as  to  his  sons  in  law  invali- 
date his  will  where  he  did  not  permit  it  to  affect  his  judgment  as 
to  the  members  of  his  own  family.4  Nor  will  a  will  be  set  aside 
on  the  ground  that  the  testator  entertained  a  delusion  as  to  his 
brothers  and  nephews  and  nieces  which  prevented  him  from  giving 
them  anything,  where  he  had  a  wife  living  to  whom  he  was 
greatly  attached,  as  it  will  be  inferred  that  he  acted  from  a  sense 
of  justice  towards  her  rather  than  from  a  delusion  towards  them.5 
So,  the  belief,  or  pretended  belief,  on  the  part  of  a  testator  in 
the  illegitimacy  of  a  child  whom  he  disinherited  will  not  be 
deemed  an  insane  delusion  which  will  invalidate  his  will  where 
he  had  acknowledged  her  legitimacy,  and  it  appears  that  the 
doubts  thrown  upon  it  were  for  sinister  purposes  of  his  own.8 

§  20.  Sjyeculative  beliefs. 
Opinions  upon  questions  of  mere  speculative  belief  cannot  be 
considered  as  delusions  or  insanity.7  And  an  opinion  entertained 
by  a  testator  as  to  a  future  state,  concerning  which  no  one  has 
positive  knowledge  and  which  is  entirely  within  the  dominion  of 
opinion  and  faith  and  not  of  knowledge,  cannot  be  deemed  evi- 
dence of  insanity  which  will  affect  the  validity  of  his  will.8  Nor 
is  a  belief  in  religious  creeds  or  in  the  doctrine  of  any  church 

1  Greenwood  v.  Greenwood,  3  Curt.  Eccl.  Bep.  337. 
8  Hite  v.  Sims,  91  Ind.  333. 

3  Ee  McCue,  17  N.  Y.  Week.  Dig.  501. 

4  Bush  v.  Megee,  36  Ind.  69.     And  see  Brace  v.  Black,  125  111.  33. 
6  Be  Keeler,  3  N.  Y.  Supp.  629. 

6  Ditchburn  v.  Fearn,  6  Jur.  201. 

1  Thompson  v.  Quimby,  2  Bradf.  449.  And  see  Thompson  v.  Thompson,. 
21  Barb.  107;  Smith's  Will,  52  Wis.  543,  38  Am.  Bep.  756;  Walcott  v.  Al- 
lyn,  Milw.  Eccl.  Bep.  65. 

8  Be  Bonard's  WiU,  16  Abb.  Pr.  N.  S.  128;  Gass  v.  Gass,  3  Humph.  278- 


304  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

such  an  insane  delusion  as  will  invalidate  a  will.1  And  the  belief 
of  a  testator  that  there  are  degrees  of  happiness  in  a  future  state 
of  existence,  and  that  in  whatever  circle  a  man  lived  on  earth,  he 
may  live  in  the  same  in  a  future  state,  and  that  his  pre-eminence 
there  depends  upon  the  amount  of  property  he  possessed  here 
and  the  charitable  purposes  to  which  he  devoted  it  does  not 
establish  his  insanity.2  Nor  is  belief  in  the  doctrine  of  metempsy- 
chosis, consisting  of  a  belief  that  the  souls  of  men  after  death 
pass  into  animals,  an  insane  delusion  which  will  invalidate  the 
will  of  a  person  so  believing/  So,  religious  impressions  and 
apprehensions  producing  extreme  anxiety  and  hopeless  despair 
because  of  a  conviction  upon  the  part  of  a  testator  that  he  had 
passed  his  day  of  grace,  which  rendered  him  unconcerned  and 
listless  on  all  other  subjects,  do  not  show  him  incapable  of  mak- 
ing a  valid  will,  where  his  attention  could  be  diverted  to  other 
things  and  he  was  rational  and  sensible  as  to  them.4  But  the 
modification  of  an  instruction  that  eccentricities  or  peculiarities 
or  radical  or  extreme  notions  or  opinions  upon  religion,  educa- 
tion, or  secret  societies  will  not  render  a  man  incapable  of  mak- 
ing a  will,  so  as  to  read  "  not  necessarily  render  him  incapable," 
is  not  error.5 

A  belief  in  the  possibility  of  cures  as  the  result  of  the  exercise 
of  faith  on  the  part  of  the  patient  or  healer  or  both  however,  though 
practically  held  by  many  persons,  is  sufficient  to  constitute  testa- 
mentary incapacity  where  it  unsettles  the  judgment  and  leaves  the 
testator  under  the  influence  of  a  delusion  that  usurps  the  place  of 
reason  and  controls  his  will.6 

So,  a  belief  in  spiritualism  is  not  mental  unsoundness  or  an  in- 
sane delusion  which  will  affect  the  validity  of  a  will,7  unless  it 

1  Newton  v.  Carbery,  5  Cranch,  C.  C.  626;  Gass  v.  Gass,  3  Humph.  278; 
Mullins  v.  Cottrell,  41  Miss.  291. 

2  Gass  v.  Gass,  3  Humph.  278. 

s  Ke  Bernard's  Will,  16  Abb.  Pr.  N.  S.  128. 

4  Ke  Weir's  Will,  9  Dana,  431. 

6  American  Bible  Soc.  v.  Price,  115  HI.  632. 

6  Taylor  v.  Trich,  165  Pa.  586. 

7  La  Bau  v.  Yanderbilt,  3  Bedf.  385;  Be  Keller's  Will,  12  N.  T.  S.  E.  148; 
Be  Spencer's  Estate,  96  Cal.  448;  Otto  v.  Doty,  61  Iowa,  23;  Middleditch 
v.  Williams,  45  N.  J.  Eq.  726,  4  L.  B.  A.  738;  Turner  v.  Hand,  3  Wall.  Jr. 
120. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  305 

appears  that  the  will  was  the  offspring  of  such  belief.1  Thus,  a 
belief  by  a  testator  that  he  can  communicate  with  spirits  and  be 
advised  and  directed  by  them  in  his  business  transactions  and  as 
to  the  disposition  of  his  property  does  not  per  se  establish  his 
testamentary  incapacity.2  And  the  fact  that  he  may  be  led  to 
give  credence  to  alleged  communications  from  spirits  which  are 
in  fact  impositions  and  delusions  contrived  by  designing  persons 
does  not  establish  testamentary  incapacity,  but  is  proper  to  be 
•considered  on  the  question  of  mental  weakness.3  So,  mere  eccen- 
tricities of  belief,  including  a  belief  in  spiritualism,  are  not  con- 
clusive evidence  of  want  of  testamentary  capacity  where  the 
testator  is  not  affected  by  any  delusion  respecting  matters  of 
fact  connected  with  the  will  or  objects  of  his  bounty.4  And 
belief  by  a  testator  in  mesmerism,  clairvoyants,  divining  and 
mineral  rods,  and  dreams  and  spiritual  influences,  and  in  the  ex- 
istence of  deposits  of  money  by  Captain  Kidd,  ascribing  his  fail- 
ure to  find  them  to  the  utterance  of  certain  words  during  the 
search,  is  not  such  an  insane  delusion  as  will  invalidate  his  will.& 
An  insane  delusion  may  be  established  in  a  particular  case,  how- 
ever, by  the  surrender  of  the  will  of  a  victim  to  imaginary  direc- 
tions regarded  as  the  directions  of  God  or  spirits  speaking  to  him 
from  another  world,  or  by  the  control  of  an  impulse  due  to  an 
imaginary  state  of  facts,6  and  a  will  in  favor  of  a  spiritual  medium, 
made  by  one  who  embraced  spiritualism  as  practised  by  her  instead 
of  believing  in  it  as  an  abstract  proposition,  becoming  possessed  by 
it  and  suffering  it  to  dominate  his  life  and  override  every  other  con- 
sideration, which  belief  was  artfully  used  by  the  medium  to  alien- 
ate him  from  his  only  child  and  get  his  property,  will  be  set  aside.7 
And  belief  on  the  part  of  a  testatrix  that  the  spirit  of  her  deceased 
husband  directed  or  dictated  her  will,  and  groundless,  causeless 
suspicions  entertained  by  her  of  her  son-in-law's  character,  will 
invalidate  her  will  where  they  amount  to  an  insane  delusion  and 

1  La  Bau  v.  Vanderbilt,  3  Eedf .  384. 

2  Turner  v.  Busk,  53  Md.  65. 

3  Be  Storey's  Will,  20  111.  App.  183. 

4  McClary  v.  Stull,  44  Neb.  175;  Be  Smith,  52  Wis.  543. 
6  Thompson  v.  Quiniby,  2  Bradf.  449. 

6  Taylor  v.  Tricb,  165  Pa.  586. 

7  Thompson  v.  Hawks,  14  Fed.  Bep.  902. 

20 


306  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

influence  her  in  making  her  will.1  So,  belief  in  witchcraft,  on 
the  part  of  a  testator,  will  not  invalidate  his  will  where  it  is  not 
shown  to  have  had  some  connection  with  such  belief,2  though 
connected  with  a  belief  that  his  health  had  been  permanently 
affected  by  slow  poisoning  surreptitiously  administered,3  or  that 
his  daughter,  whom  he  disinherited,  was  a  witch,4  or  accompanied 
by  extravagant  and  eccentric  actions.5  And  belief  in  the  state- 
ment of  clairvoyants,  fortune  tellers,  and  spiritual  mediums,  and 
in  the  impressions  derived  from  dreams,  and  in  witchcraft,  to- 
gether with  wild  and  visionary  ideas  not  connected  with  the  sub- 
ject or  object  of  the  testamentary  act,  will  not  invalidate  a  will 
where  the  testator  readily  abandoned  his  opinions  when  they 
were  demonstrated  to  be  incorrect,  and  his  judgment  was  sound 
as  to  matters  of  business.6 

§  21.  Moral  insanity. 
Moral  insanity  is  a  disorder  of  the  moral  affections,  feelings, 
and  propensities.7  It  may  or  may  not  impair  the  intellect.8  Un- 
less accompanied  by  insane  delusions  it  will  not  be  sufficient  to 
invalidate  a  will  or  to  incapacitate  a  person  to  make  one.9  And 
the  fact  that  a  wife  distrusted,  despised,  hated,  and  feared  her 
husband  without  reason,  and  that  her  will  was  probably  influ- 
enced by  her  feelings  towards  him,  will  not  invalidate  a  will  made 
by  her  excluding  him  in  a  large  measure  from  sharing  in  her 
property.10  In  such  case  the  question  is  not  whether  her  feelings 
towards   him  were   unreasonable   or   unjust,    or   whether   they 

1  Robinson  v.  Adams,  62  Me.  369,  16  Am.  Eep.  473. 

2  Leech  v.  Leech,  5  Clark  (Pa.)  86;  Lee  v.  Lee,  4  McCord,  L.  183, 17  Am. 
Dec.  722;  Jones  v.  Hughes,  15  Abb.  N.  0.  141. 

3  Leech  v.  Leech,  5  Clark  (Pa.)  86. 

4  Schlidnecht  v.  Eompf,  9  Ky.  L.  Eep.  121;  Addington  v.  Wilson,  5  Ind. 
137,  61  Am.  Dec.  81. 

6  Lee  v.  Lee,  4  McCord  L.  183,  17  Am.  Eep.  722. 

6  Ee  Chafin's  Will,  32  Wis.  557. 

The  insane  are  more  apt  to  entertain  strange  beliefs,  and  to  be  influenced 
and  defrauded  by  alleged  spiritualists,  clairvoyants,  etc.,  than  are  sane  per- 
sons.    See  Spiritualism.     S.  Y.  C. 

'•  Ee  Forman,  54  Barb.  274;  Boardman  v.  Woodman,  47  N.  H.  120. 

8  Ee  Forman,  54  Barb.  274.     And  see  Mayo  v.  Jones,  78  N.  C.  402. 

9  Boardman  v.  Woodman,  47  N.  H.  120. 

10  Ee  Forman,  54  Barb.  274;  Frere  v.  Peacock,  1  Eob.  442. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  307 

showed  moral  insanity  as  to  him,  but  whether  such  feelings 
were  insane.1  And  the  question  as  to  the  extent  to  which  moral 
debasement  is  evidence  of  insanity  is  one  for  the  jury.2 

§  22.  Incapacity  in  connection  with  undue  influence  or  fraud. 

An  objection  in  a  will  contest  that  the  testator  was  under  undue 
influence  and  restraint  at  the  time  of  making  his  will  implies 
that  he  had  sufficient  mental  capacity  to  make  it.3  But  weakness 
of  mind,  whether  arising  from  age,  infirmity,  or  other  causes, 
though  not  sufficient  to  create  testamentary  incapacity,  may  never- 
theless form  favorable  conditions  for  the  exercise  of  undue  influ- 
ence, and  the  condition  of  the  mind  may  be  a  proper  subject  of 
inquiry  on  such  an  issue.4  And  in  determining  whether  a  will 
was  the  result  of  undue  influence  or  fraud  it  is  proper  to  con- 
sider the  physical  and  mental  condition  of  the  testator,6  as  this  is 
commonly  the  condition  of  undue  influence.6  And  where  there 
is  evidence  of  undue  influence  when  the  question  of  capacity  is  at 
issue  the  jury  should  be  left  free  to  consider  it.7  It  requires  less 
undue  influence  and  less  fraud  to  procure  a  will  unlawfully  from 
a  person  of  weak  and  impaired  intellect  than  from  a  person  of  full 
mental  vigor,8  and  proof  of  much  less  capacity  is  sufficient  to  sus- 
tain a  will  of  an  officious  character  procured  through  unsuspected 
agencies  than  is  necessary  to  sustain  one  of  the  opposite  descrip- 
tion.9 And  the  questions  of  undue  influence  and  of  mental  inca- 
pacity should  not  be  separated  where  the  testator  was  of  advanced 
age  and  suffered  from  a  disease  affecting  his  brain  and  vital 
powers.10     The  weakness  of  mind,  however,  which  will  affect  the 

1  Ee  Forman,  54  Barb.  274. 
"  Mayo  v.  Jones,  78  K  C.  402. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Moral  Insanity, 
chap.  Vni. 

3  Kinne  v.  Johnson,  60  Barb.  69. 

4  Herster  v.  Herster,  122  Pa.  239.  And  see  Wilson  v.  Mitchell,  101  Pa. 
495. 

6  Myers- v.  Hauger,  98  Mo.  433;  Beichenbach  v.  Buddach,  127  Pa.  564. 

6  Hoban  v.  Campau,  52  Mich.  346. 

1  Tobin  v.  Jenkins,  29  Ark.  151;  Be  Armor's  Estate,  154  Pa.  517. 

8  Beichenbach  v.  Buddach,  127  Pa.  564. 

9  Brogden  v.  Brown,  2  Add.  Eccl.  Bep.  441. 

">  Wilson's  Appeal,  11  W.  N.  0.  333;  Gibson's  Estate,  11  W.  N.  O.  355; 
Sherley  v.  Sherley,  81  Ky.  240.     And  see  Be  Armor's  Estate,  154  Pa.  517. 


308  MEDICAL    JURISPRUDENCE    OF   INSANITY. 

validity  of  a  will  in  connection  with  undue  influence  must  be 
such  as  to  render  the  testator  incapable  of  resisting  the  influence 
used,1  and  to  render  him  incapable  of  seeing  and  understanding 
as  he  would  do  if  he  were  unaffected.2  Undue  influence  cannot 
exist  unless  there  is  a  person  incapable  of  protecting  himself,  as 
well  as  a  wrongdoer  to  be  resisted.3  And  a  testamentary  dispo- 
sition of  a  person  of  imbecile  mind,  which  is  induced  by  fraud, 
imposition,  or  undue  influence,  so  as  to  be  different  from  what  it 
would  have  been  had  the  testator  been  in  the  full  possession  of  his 
faculties,  will  be  set  aside."  A  person  over  whose  mind  such  a 
domination  or  influence  is  obtained  as  to  prevent  him  from  exer- 
cising his  discretion  in  the  making  of  his  will  cannot  be  consid- 
ered as  having  a  disposing  mind  so  as  to  entitle  him  to  make  it, 
though  his  mind  was  of  sufficient  soundness  and  discretion  to 
regulate  his  affairs  in  general.6 

§  23.  Testamentary  capacity;  how  detei^mined. 

What  degree  of  mental  capacity  is  necessary  to  enable  a  testa- 
tor to  make  a  will,  and  to  what  extent  and  to  what  degree  of  per- 
fection he  must  understand  the  will  and  the  persons  and  property 
affected  by  it,  and  to  what  extent  his  mind  must  have  been  im- 
paired to  render  him  incapable,  are  questions  of  law  exclusively 
for  the  court.6  Whether  unsoundness  of  mind  amounts  to  judicial 
incapacity  to  make  a  will  is  to  be  ascertained  by  the  court  by  the 
application  of  rules  of  law  in  the  exercise  of  a  sound  discretion 
regulated  thereby.7  And  the  sufficiency  of  evidence  adduced  to 
show  testamentary  capacity  is  likewise  a  question  for  the  court, 
and  the  submission  of  the  question  of  capacity  to  the  jury  is  error 

'Sutton  v.  Sutton,  5  Harr.  (Del.)  459;  Baldwin  v.  Parker,  99  Mass.  79, 
96  Am.  Dec.  697;  Children's  Aid  Soc.  v.  Loveridge,  70  N.  Y.  387;  Konle- 
side  v.  Harrison,  2  Pkilni.  Eccl.  Rep.  551. 

2  Floyd  v.  Floyd,  3  Strobh.  L.  44,  49  Am.  Dec.  626. 

3  Latham  v.  Udell,  38  Mich.  238. 

4  Clark  v.  Fisher,  1  Paige,  171,  19  Am.  Dec.  402. 

5  Mountain  v.  Bennet,  1  Cox,  Ch.  Cafi.  356. 

For  Dr.  Cleveuger's  discussion  on  this  subject,  see  Undue  Influence, 
chap.  VIII. 

6  Kempsey  v.  McGinniss,  21  Mich.  123;  Overton  v.  Overton,  18  B. 
Mon.  61. 

1  Stackhouse  v.  Horton,  15  N.  J.  Eq.  202. 


LEGAL    ADJUDICATIONS    IN    CIVIL   CASES.  309 

unless  it  finds  the  evidence  to  be  sufficient.1  And  the  jury  have 
nothing  to  do  with  distinction  and  classification  as  to  unsound- 
ness of  mind,  except  as  they  may  assist  them  in  arriving  at  a  con- 
clusion as  to  its  existence.2  So,  the  question  as  to  what  constitutes 
an  unreasonable  and  irrational  bias  on  the  part  of  the  testator  is 
one  for  the  court,  and  an  instruction  which  in  effect  leaves  the 
question  to  the  jury  is  erroneous.3  Whether  a  testator  had  the 
degree  of  mental  capacity  necessary  to  enable  him  to  make  a  valid 
will,  however,  is  a  question  of  fact  for  the  decision  of  the  jury 
upon  all  the  circumstances  of  the  particular  case,4  a  finding  of 
soundness  of  mind  not  being  a  conclusion  of  law  but  the  finding 
of  an  ultimate  fact.6  And  the  reasonableness  or  unreasonableness 
of  the  dispositions  of  a  will  is  also  a  question  for  their  considera- 
tion,6 and  the  question  with  relation  to  undue  influence  over  a 
testator  in  respect  to  the  execution  of  his  will,  in  connection  with 
mental  incapacity,  is  also  one  of  fact  to  be  determined  by  the 
trial  court.7 

So,  what  constitutes  an  insane  delusion,  and  its  effect  upon 
testamentary  capacity,  are  questions  of  law.8  But  the  question 
whether  or  not  the  testator  comes  within  the  legal  definition 
of  a  delusion  is  one  of  fact  to  be  found  by  the  jury  from  the 
evidence.9  And  whether  prejudice  against  a  natural  object  of 
a  testator's  bounty  is  evidence  of  derangement  of  mind  or  not 

'Shaver  v.  McCarthy,  110  Pa.  339;  Shailer  v.  Bumstead,  99  Mass.  112. 

2  Lowder  v.  Lowder,  58  Ind.  538. 

3  Williams  v.  Williams,  90  Ky.  28. 

4  CampbeU  v.  Campbell,  130  111.  466,  6  L.  E.  A.  167;  Meeker  v.  Meeker, 
75  El.  260;  Hill  v.  Nash,  41  Me.  585,  66  Am.  Dec.  266;  Ware  v.  Ware,  8 
Me.  42;  Ee  Coleman,  111  N.  Y.  220;  Chrisman  v.  Chrisman,  16  Or.  127; 
Eees  v.  Stille,  38  Pa.  138;  Lewis  v.  Lewis,  6  Serg.  &  E.  496;  Tillman  v. 
Hatcher,  1  Eice,  L.  271;  Gass  v.  Gass,  3  Humph.  278;  Vance  v.  Upson,  66 
Tex.  476;  Prather  v.  McClelland,  76  Tex.  574;  Minard  v.  Minard,  1 
Brayton,  231;  Den,  Stevens,  v.  Vancleve,  4  Wash.  C.  C.  262. 

6  Clements  v.  McGinn  (Cal.)  33  Pac.  920. 

6  Evans  v.  Arnold,  52  Ga.  169;  Ee  Carpenter,  79  Cal.  382. 

7  Ee  Coleman,  111  N.  Y.  220;  Eobinson  v.  Adams,  62  Me.  369,  16  Am. 
Eep.  473;  Prather  v.  McClelland,  76  Tex.  578. 

8  Prather  v.  McClelland,  76  Tex.  574. 

9  Prather  v.  McClelland,  76  Tex.  574;  Eobinson  v.  Adams,  62  Me.  369,  16 
Am.  Eep.  473;  Banks  v.  Goodfellow,  22  L.  T.  N.  S.  820. 


310  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

is  also  a  question  for  the  jury.1  The  court  will  not  declare,  as 
matter  of  law,  that  certain  facts  and  matters  are  not  of  themselves 
insane  delusions  rendering  a  will  invalid,  but  will  require  the  jury 
to  determine  after  a  full  and  fair  consideration  of  the  evidence 
whether  or  not  the  facts  proved  show  the  existence  of  such  a 
delusion.2 

And  the  fact  that  proof  of  delusion  is  all  upon  one  side  does  not 
authorize  the  court  to  direct  the  jury  to  find  in  accordance  with 
such  proof,  as  the  jury  have  the  right  to  discredit  it.3  So,  where 
there  are  no  facts  showing  that  the  testator  was  afflicted  with 
what  in  law  amounts  to  an  insane  delusion  the  issue  should  be  taken 
from  the  jury,4  and  where  a  will  is  contested  upon  the  ground 
of  a  special  delusion  against  the  contestant  the  attention  of  the 
jury  ought  to  be  called  specially  to  that  issue.5  But  the  court 
will  not  separate  certain  supposed  delusions  from  a  large  bulk 
of  evidence  and  instruct  that  they  alone  are  sufficient  to  show  in- 
sanity.6 

So  it  is  for  the  jury,  and  not  for  the  judge,  to  determine  as  to 
the  weight  of  any  particular  proof.7  And  the  weight  and  value 
of  the  opinions  of  both  expert  and  nonexpert  witnesses  as  to 
mental  capacity  are  for  the  consideration  of  the  jury.8  And 
an  instruction  that  one  clause  or  item  of  evidence  is  of  greater 
weight  than  another  is  erroneous  as  an  invasion  of  the  province 
of  the  jury.9  JS^or  is  it  proper  in  instructing  the  jury  to  group  a 
set  of  facts  together  or  single  out  particular  facts  and  either  con- 
demn them  or  exalt  them  as  conclusive,  as  the  jury  should  be  left  to 
weigh  the  facts.10     And  an  instruction  in  a  contest  in  which  undue 

1  Greenwood  v.  Greenwood,  3  Curt.  Eccl.  Rep.  337. 

2  Robinson  v.  Adams,  62  Me.  369,  16  Am.  Rep.  473. 

3  Townshend  v.  Townshend,  7  Gill,  10. 

4  Pratker  v.  McClelland,  76  Tex.  574. 

5  Lucas  v.  Parsons,  24  Ga.  640,  71  Am.  Dec.  147. 

6  Turner  v.  Rusk,  53  Md.  65. 

7  Gardner  v.  Lamback,  47  Ga.  133 ;  Trezevant  v.  Rains,  85  Tex.  329. 

8  Wise  v.  Foote,  81  Ey.  10;  Newhard  v.  Yundt,  132  Pa.  324. 

9  Brown  v.  Riggin,  94  111.  560;  Durham  v.  Smith,  120  Ind.  463;  Shaver 
v.  McCarthy,  110  Pa.  339;  Cline  v.  Lindsey,  110  Ind.  337;  Gardner  v.  Lam- 
back, 47  Ga.  133. 

10  Hoerth  v.  Zable,  92  Ky.  202;  Zimlich  v.  Zimlich,  12  Ky.  L.  Rep.  590; 
Howard  v.  Coke,  7  B.  Mon.  655;  Jenkins  v.  Tobin,  31  Ark.  306;  Spoone- 
more  v.  Cables,  66  Mo.  579;  Reichenbach  y.  Ruddach,  127  Pa.  564. 


LEGAL    ADJUDICATIONS    IN    CIVIL   CASES.  311 

influence  is  alleged,  that  if  the  jury  believes  the  testator  was  of 
sound  mind  and  knew  the  contents  of  the  will  it  will  be  sustained, 
is  error,  unless  so  qualified  as  to  leave  the  question  of  free  will  to 
the  jury.1 

So,  the  finding  of  a  jury  upon  the  question  as  to  testamen- 
tary capacity  is  conclusive  unless  clearly  against  the  weight  of 
evidence.2  And  a  verdict  or  finding  either  for  or  against  the 
will  will  not  be  set  aside  on  appeal  where  there  is  a  conflict  of 
■evidence  and  no  question  of  law  is  presented,3  though  the  evi- 
dence to  uphold  it  is  meager  and  inconclusive.4  Nor  should  a 
verdict  be  directed.6  And  a  determination  against  a  will  will  not 
be  reversed,  though  the  testimony  in  its  favor  preponderates, 
where  the  court  cannot  say  that  the  finding  was  so  palpably 
against  the  weight  of  evidence  as  to  indicate  passion  and  preju- 
dice." The  question  as  to  whether  refusal  to  instruct  the  jury 
that  there  was  not  sufficient  legal  evidence  before  them  of  mental 
incapacity  was  error  or  not,  will  not  be  considered  on  appeal 
where  the  verdict  was  in  favor  of  the  proponent.7 

So,  in  all  cases  in  equity  involving  questions  of  insanity  it  is  emi- 
nently proper  that  an  issue  should  be  framed  and  tried  by  a  jury.8 
But  the  court  has  power  to  try  the  question  without  directing  an 
issue,9  and  to  set  aside  a  verdict  of  a  jury  and  grant  a  new  trial 
if  in  its  opinion  the  verdict  ought  not  to  be  permitted  to  stand.10 
And  a  new  trial  will  be  granted  on  an  appeal  from  a  decree  of 
probate  tried  on  the  issue  of  testamentary  capacity  where  the 
verdict  was  manifestly  against  the  weight  of  evidence,  though 
there  was  evidence  on  both  sides.11     But  where  in  a  will  contest 

1  Yardley  v.  Cuthbertson,  108  Pa.  395,  56  Am.  Eep.  218. 

*  American  Bible  Soc.  v.  Price,  115  111.  623;  Brown  v.  Bruce,  19  U.  C. 
Q.  B.  35. 

3  Eogers  v.  Diamond,  13  Ark.  475;  Moyer  v.  Swygart,  125  111.  267;  Smith 
v.  James,  72  Iowa,  515;  Tillman  v.  Hatcher,  1  Bice,  L.  271;  Hill  v.  Nash, 
41  Me.  585,  66  Am.  Dec.  266. 

4  McDaniel  v.  Crosby,  19  Ark.  533. 

6  Duggan  v.  McBreen,  78  Iowa,  591. 

6  Newcomb  v.  Newcomb,  16  Ky.  L.  Eep.  376;  Brace  v.  Black,  125  IU.  33. 

»  Moore  v.  McDonald,  68  Md.  321. 

*  Guild  v.  Hull,  127  IU.  523;  Myatt  v.  Walker,  44  HI.  485. 

*  Alexander  v.  Alexander,  5  Ala.  517. 

10  McElroy  v.  McElroy,  5  Ala.  81. 

11  Kinne  v.  Kinne,  9  Conn.  102,  21  Am.  Dec.  732. 


312 


MEDICAL    JURISPRUDENCE    OF    INSANITY. 


opinions  as  to  testamentary  capacity  are  given  both  ways,  and 
both  sides  are  sustained,  the  determination  of  the  surrogate  who 

had   the  advantage  of  personal  inspection  of  the  witnesses  will 
not  be  disturbed  on  appeal  unless  the  preponderance  is  strongly 

against  his  finding.1 

§  24.  Submission  of  the  issue. 

Under  the  Pennsylvania  practice  the  question  frequently  arises 
whether  there  is  sufficient  evidence  to  warrant  the  submission  of 
the  question  of  testamentary  capacity  to  a  jury,  and  an  issue 
should  be  granted  where  the  evidence  is  such  that  if  believed  by 
the  jury  a  verdict  against  the  will  would  be  sustained.2  But  if  it 
would  not  justify  finding  a  verdict  against  the  will,  or  if  such  a 
verdict  would  be  set  aside  as  against  the  weight  of  evidence,  it 
should  be  refused.5  Doubtful  and  unsatisfactory  evidence  of  in- 
capacity will  not  warrant  the  submission  of  an  issue;4  nor  will 
evidence  which  is  insufficient  to  overcome  the  presumption  of 
capacity.5  Thus,  the  opinions  of  disappointed  and  insufficiently 
informed  witnesses  that  a  testator  did  not  have  testamentary 
capacity  are  not  sufficient  to  warrant  sending  an  issue  to  a  jury  where 
the  overwhelming  weight  of  the  testimony  as  to  facts  shows  tes- 
tamentary capacity.6  Xor  is  evidence  of  trifling  acts  indicating 
mental  incapacity,  and  the  testimony  of  a  physician  that  the  tes- 
tatrix was  a  little  peculiar  and  had  symptoms  of  softening  of  the 
brain  and  was  childish,  where  another  physician  with  better 
opportunities  for  judging  testified  to  the  contrary,  and  the  proof 

1  Harper  v.  Harper,  1  Tkomp.  i:  C.  351. 

'■  Colgate's  Estate,  5  W.  N.  C.  170;  Be  Schwilke's  Appeal,  100  Pa.  628; 
Re  Palmer's  Estate,  24  TV.  N.  C.  105. 

3  Ee  Lillibridge's  Estate,  133  Pa.  211;  Herster  v.  Herster,  122  Pa.  339; 
Ee  Enauss's  Appeal,  114  Pa.  10;  Re  Eddey's  Appeal,  109  Pa.  406;  Ee  Combs's 
Appeal,  105  Pa.  155;  Wilson  v.  Mitchell,  101  Pa.  495;  Canffman  v.  Long, 
82  Pa.  72;  Ee  De  Haven's  Appeal,  75  Pa.  337;  Ee  Taylor's  Estate,  16Phila. 
274:  Ee  Newlin's  Estate,  7  Pa.  Co.  Ct.  640;  Ee  Loeser's  Estate,  35  W.  N.  C. 
43;  Ee  Colgate's  Estate,  5  W.  X.  C.  170;  Ee  Frowert,  2  W.  N.  C.  588; 
Ee  Depny,  1  TV.  X.  C.  212. 

'  Ee  Foster's  Estate,  142  Pa.  62;  Ee  Schwilke's  Appeal,  100  Pa.  628;  Ee 
Reason's  Estate,  4  Pa.  Dist.  E.  91,  Affirmed  in  175  Pa.  154. 

5  Ee  Hazzard's  Estate,  7  Pa.  Co.  Ct.  56. 

1  Ee  Eddey's  Appeal,  109  La.  406. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  313 

of  testamentary  capacity  was  overwhelming.1  So,  evidence  that 
a  testator  was  physically  weak  and  sick  will  not  warrant  an  issue 
where  he  had  full  knowledge  of  the  act  he  was  engaged  in 
and  of  his  property  and  the  disposition  he  desired  to  make  of 
it ; 2  nor  will  evidence  that  he  was  old,  intemperate,  and  irascible ; 3 
nor  evidence  of  forgetfulness  on  the  part  of  a  testator,  and  that 
he  complained  that  his  head  was  giddy,  as  against  evidence  that 
he  was  intelligent  and  clear-headed  and  of  a  sound  and  disposing 
mind.4  And  evidence  by  visitors  that  they  found  the  testator 
asleep,  and  that  he  seemed  to  be  in  a  stupor  and  muttered  inco- 
herently, will  not  warrant  the  submission  of  an  issue  where  he 
had  taken  chloral  by  order  of  his  physician  and  the  lawyer  who 
wrote  the  will,  and  the  attesting  witnesses  testify  that  he  was  in 
full  possession  of  his  faculties  when  he  executed  it.5  But  evi- 
dence that  a  testator  had  been  in  the  habit  of  dosing  himself  with 
morphine,  opium,  and  other  drugs  for  years,  and  that  he  believed 
that  his  family  were  conspiring  against  him,  and  that  if  not 
watched  his  wife  might  poison  him,  justifies  the  submission  of  an 
issue  to  a  jury  where  the  will  disinherited  two  of  his  daughters 
because  of  the  marriage  of  one  of  them  to  a  gentleman  against 
whom  he  conceived  a  groundless  antipathy,  and  of  the  presence 
of  the  other  at  the  marriage  ceremony.6  So,  evidence  that  a  tes- 
tator was  blind  and  partially  deaf,  and  his  memory  treacherous 
as  to  recent  events,  and  that  he  would  frequently  repeat  himself, 
and  slept  almost  constantly  and  had  become  filthy  in  his  habits, 
together  with  the  opinion  of  several  who  had  known  him  in  the 
prime  of  life  that  he  lacked  testamentary  capacity,  is  not  suffi- 
cient to  warrant  the  submission  of  the  issue  where  his  will  was 
reasonable  and  somewhat  similar  to  a  previous  disposition,  which 
had  been  revoked.7  And  proof  of  mental  vigor,  business  ability, 
and  knowledge  of  his  affairs,  on  the  part  of  a  testator,  is  sufficient 

1  Ee  Newlin's  Estate,  7  Pa.  Co.  Ct.  648. 

2  Ke  Doyle's  Estate,  7  Pa.  Co.  Ct.  657;  Ke  McKim's  Estate,  27  W.  N.  C. 
110. 

»  Keating's  Appeal,  36  Pittsb.  L.  J.  283. 

4  Ee  Depuy,  1  W.  N.  C.  212.     And  see  Ee  Pensyl,  157  Pa.  465. 

6  Ee  Hamilton's  Estate,  4  Pa.  Dist.  E.  161,  16  Pa.  Co.  Ct.  303. 

6  Ee  Carter's  Estate,  11  Pa.  Co.  Ct.  140. 

7  Wilson  v.  Mitchell,  101  Pa.  495;  Ee  'Xapfle's  Estate,  134  Pa.  492. 


314  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

to  warrant  a  refusal  to  submit  an  issue  as  against  evidence  that 
he  preferred  one  child,  above  another  in  making  his  will,  or  disin- 
herited one  or  more ;'  or  as  against  evidence  of  bad  health,  slight 
insomnia,  and  occasional  lapse  of  memory  and  absent-minded- 
ness;2 or  as  against  evidence  that  he  was  confined  to  his  bed 
with  rheumatism  during  the  last  six  years  of  his  life  and  subject 
at  intervals  to  delusions,  imagining  that  people  were  carrying 
•  away  his  fences,  where  the  delusions  were  of  short  duration;3 
or  as  against  evidence  of  filthy  habits  and  extreme  vulgarity  at 
times,  and  that  the  testator  was  penurious  and  miserly  to  the 
extent  of  depriving  himself  of  the  comforts  of  life.4  But  evi- 
dence that  the  testator  was  dirty  in  his  personal  habits,  and  had 
no  memory,  and  could  not  feed  himself  nor  tend  to  any  business, 
and  did  not  know  the  value  of  money,  and  could  not  distinguish 
between  different  amounts,  and  committed  many  strange  and  ex- 
travagant actions,  is  sufficient.5  So,  evidence  of  rambling  conver- 
sations and  instances  of  forgetfulness  and  absent-mindedness,  pro- 
fanity, abusiveness,  and  amorous  remarks  does  not  authorize  an 
issue.6  Nor  does  evidence  of  want  of  memory  and  ability  to 
speak  except  in  monosyllables,  or  to  tell  the  time,  and  that  he 
was  avoided  by  his  wife,  and  spoke  of  new  shoes  as  coffins,  where 
most  of  such  defects  were  explained  by  proof  that  his  eyesight 
was  weak  and  his  hand  paralyzed  and  that  he  came  from  a  cer- 
tain place  where  certain  shoes  were  called  coffins.7  Nor  is  an 
issue  warranted  by  the  fact  that  the  testatrix,  who  was  old  and 
somewhat  feeble,  and  whose  sanity  was  questioned,  gave  her 
legal  adviser,  who  had  prepared  her  will,  property  amounting  to 
one  eighth  of  her  whole  estate,  giving  the  residue  to  him  in  trust 
for  certain  of  her  relatives.8  And  an  inquisition  of  lunacy  find- 
ing a  testator  a  lunatic  at  the  time  of  the  execution  of  his  will, 
which  was  traversed,  but  the  issue  was  not  tried  by  reason  of  his 

1  Ee  Loeser's  Estate,  3  Pa.  Dist.  E.  817. 

2  Ee  Douglass's  Estate,  162  Pa.  567. 

3  Ee  Boyer's  Estate,  166  Pa.  630. 

4  Ee  Tailman's  Will,  1  Pa.  Adv.  E.  530. 

5  Ee  Ulmer's  Appeal  (Pa.)  11  Cent.  403. 

6  Ee  Fow's  Estate,  147  Pa.  264. 

1  Ee  Gatley's  Estate,  4  Pa.  Dist.  E.  52. 
*  Stokes  v.  Miller,  10  W.  N.  C.  241. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASKS. 


315 


death,  is  not  conclusive  of  the  right  to  the  submission  of  the  issue 
to  a  jury.1 

In  England  the  validity  of  a  will  must  be  determined  by  a  jury 
where  the  heir  insists  upon  an  issue,  though  all  the  witnesses  to 
the  will  testify  to  the  sanity  of  the  testator.1 

§  25.  Proof  to  establish  generally. 

To  avoid  a  will  on  the  ground  of  insanity  of  the  testator  gen- 
eral insanity  must  be  made  out  or  partial  insanity  at  the  very 
time  of  executing  it.3  The  principal  mode  of  testing  the  mental 
condition  of  a  testator  is  by  a  review  of  his  life,  habits,  and  opin- 
ions,4 and  consideration  of  his  answers  to  general  questions  and 
his  recollection  of  past  events  and  his  reasoning  in  regard  to 
them.6  The  point  at  which  a  disposing  mind  disappears  and 
incapacity  begins,  however,  is  to  be  ascertained  by  an  exami- 
nation of  the  particular  circumstances  of  each  case,  to  be  duly 
made  and  considered  by  the  court  or  jury.* 

The  manner  in  which  a  will  was  written  and  executed,  and  the 
nature  and  extent  of  the  estate  of  the  testator,  his  family  and 
connections,  their  condition  and  relative  situation  to  him,  the 
terms  upon  which  he  stood  with  them,  the  claims  of  particular 
individuals,  the  condition  and  relative  situation  of  the  legatees  or 
devisees  named,  the  situation  of  the  testator  himself,  and  the  cir- 
cumstances under  which  the  will  was  made,  often  afford  impor- 
tant evidence  on  the  question  of  the  testator's  testamentary  capaci- 
ty.7 The  jury  should  be  made  acquainted  as  nearly  as  possible 
with  the  present  condition  of  the  testator  in  order  that  they  may 
judge  of  it  as  they  would  do  if  they  personally  knew  all  about  it.8 
In  determining  whether  the  testator's  mental  faculties  had  be- 
come so  weakened  as  to  render  him  incapable  of  making  a  valid 
will,  or  as  to  render  him  subject  to  undue  influence,  it  is  neces- 

1  Ke  Dyre's  Estate,  12  Phila.  156. 

2  Bootle  v.  Blundell,  19  Ves.  Jr.  494. 

s  Lee  v.  Lee,  4  McCord,  L.  183,  17  Am.  Dec.  722. 
4  Austen  v.  Grahem,  29  Eng.  L.  &  Eq.  38. 
6  Nichols  v.  Binns,  1  Swab.  &  T.  239. 

6  Young  v.  Stevens,  48  N.  H.  133,  2  Am.  Rep.  202,  97  Am.  Dec.  592; 
Dennett  v.  Dennett,  44  N.  H.  531,  84  Am.  Dec.  97. 

7  Davis  v.  Calvert,  5  GUI  &  J.  269,  25  Am.  Dec.  282. 

8Beaubien  v.  Cicotte,  12  Mich.  459;  Young  v.  Bidenbaugh,  67  Mo.  574. 


316  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

sary  to  consider  the  disposition  of  property  undertaken,  as  well 
as  the  testator's  character  and  surroundings.1  The  physical  and 
mental  condition  of  the  testator,  from  which  capacity  or  incapaci- 
ty may  be  adduced,  is  a  question  of  fact  which  may  be  shown 
by  evidence  of  physical  or  mental  manifestations,  and  the  opin- 
ions of  professional  witnesses  as  inferences  of  fact  therefrom.2 
It  is  partly  within  the  range  of  common  observation,  and  partly 
within  that  of  special  medical  experience,  and  in  determining  it 
the  court  should  inform  itself  of  the  general  results  of  medical 
observations,  and  compare  the  sayings  and  doings  of  the  testator 
while  insanit}T  is  alleged  to  exist,  with  his  sayings  and  doings 
when  he  was  sane,  and  the  sayings  and  doings  of  other  sane  per- 
sons resembling  him  with  the  sayings  and  doings  of  other  insane 
persons.3  And  the  number,  intelligence,  and  character  of  the 
witnesses  should  have  great  weight  with  the  jury.4  So,  insanity 
or  weakness  of  mind  over  which  undue  influence  is  exerted  must 
be  affirmatively  proved,  and  cannot  be  established  by  surmise  or 
suspicion.3  But  to  invalidate  a  will  it  is  not  necessary  that  insan- 
ity should  appear  on  the  face  of  the  instrument  itself.6  And 
proof  of  incompetency  or  of  undue  influence  need  not  be  posi- 
tive as  distinguished  from  circumstantial.7  And  the  question 
where  the  sanity  of  a  testator  is  impeached,  and  the  evidence  is- 
conflicting,  is  not  whether  the  facts  adduced  in  support  pf  sanity 
are  not  in  general  indications  of  sanity,  but  whether  they  are  in- 
consistent with  or  sufficiently  explanatory  of  the  indications  of 
insanity  produced  by  the  other  side.8 

§  26.  Previous  and  subsequent  insanity. 
The  point  of  time  to  be  considered  at  which  the  capacity  of  a. 
testator  is  to  be  tested  is  that  at  which  the  will  was  executed/  and 

1  Stebbins  v.  Hart,  4  Dem.  501. 

2  Kempsey  v.  McGinniss,  21  Mich.  123. 

3  Smith  v.  Tebbitt,  L.  B.  1  Prob.  &  Diy.  '401. 

4  Lee  v.  Lee,  4  McCord  L.  183,  17  Am.  Dec.  722. 
6  Allen  v.  Public  Administrator,  1  Bradf.  378. 

6  Fowlis  v.  Davidson,  6  Notes  of  Cases,  461. 

7  Eeichenbach  v.  Buddach,  127  Pa.  564. 

8  Steed  v.  Calley,  1  Keen,  620. 

9  Kinne  v.  Kinne,  9  Conn.  102,  21  Am.  Dec.  732;  Lodge  v.  Lodge,  2: 
Eoust.  (Del.)  419;  Terry  v.  Buffington,  11  Ga.  337,  56  Am.  Dec.  423;  Clark 
r.  Ellis,  9  Or.  128;  Chrisman  v.  Chrisman,  16  Or.  127;  Ee  McCullough's 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  317 

what  the  testator  said  and  did  at  that  time  is  the  best  evidence  of 
what  he  was  capable  of  doing.1  And  the  evidence  of  attesting 
witnesses  and  others  who  were  present  at  the  time,  all  things 
being  equal,  is  to  be  most  relied  upon.2  The  jury  may  consider 
the  question  of  the  sanity  or  insanity  of  the  testator  both  before 
and  after  the  execution  of  the  will,  however,  as  bearing  upon 
and  tending  to  show  the  state  of  his  mind  at  that  time.3  And 
where  a  testator  was  prostrated  by  paralysis  both  in  body  and 
mind,  so  as  to  have  been  unquestionably  incapable  of  making 
a  will,  the  question  is  whether  or  not  he  has  so  far  recovered  as 
to  be  able  to  make  one,  and  to  ascertain  this  no  particular  mo- 
ment of  time  should  be  selected,  but  the  whole  period  should  be 
reviewed  from  the  paralytic  stroke  to  the  date  of  the  will.4 
Where  habitual  insanity  is  established  preceding  and  following 
the  making  of  the  will  the  burden  is  shifted  to  the  proponent  to 
show  sanity  at  the  time  of  its  execution,5  notwithstanding  the  fact 
that  its  provisions  were  wise  and  judicious.6  Acts  of  an  habitual 
character  are  of  more  force  in  proof  of  the  existence  of  insanity 
where  clear  and  decisive  insanity  has  been  established  at  a  prior 
time,  and  a  subsequent  insane  act  may  reflect  back  on  acts  other- 
wise equivocal.7  And  a  jury  in  a  will  contest  should  not  be  told 
that  there  was  not  sufficient  evidence  of  general  insanity  where  a 
large  amount  of  testimony  was  given  as  to  the  testator's  mental 
condition  shortly  anterior  to  the  making  of  his  will.8 

Will,  35  Pittsb.  L.  J.  169;  Thompson  v.  Kyner,  65  Pa.  368;  Harrison  v. 
Bowan,  3  Wash.  C.  C.  580;  White  v.  Wilson,  13  Ves.  Jr.  87.  And  see  Eastis 
T.  Montgomery,  95  Ala.  486. 

1  Martin  v.  Thayer,  37  W.  Va.  38. 

2  Clark  v.  Ellis,  9  Or.  128;  Sheldon  v.  Dow,  1  Dem.  503. 

3Kinne  v.  Kinne,  9  Conn.  102,  21  Am.  Dec.  732;  Terry  v.  Buffington,  11 
Ga.  337,  56  Am.  Dec.  423;  Ee  Bull,  2  N.  Y.  Supp.  52;  Thompson  v. 
Kyner,  65  Pa.  368;  Irish  v.  Smith,  8  Serg.  &  B.  573,  11  Am.  Dec.  648; 
Harrison  v.  Bowan,  3  Wash.  C.  C.  580.  And  see  Eastis  v.  Montgomery,  95 
Ala.  486. 

4  Burton  v.  Scott,  3  Band.  399. 

5  Chandler  v.  Barrett,  21  La.  Ann.  58;  Ford  v.  Ford,  7  Humph.  92; 
Elkinton  v.  Brick,  44  N.  J.  Eq.  154,  1  L.  B.  A.  161. 

6  Chandler  v.  Barrett,      21  La.  Ann.  58. 

7  Wheeler  v.  Alderson,  3  Hagg.  Eccl.  Bep.  578. 

8  Eeichenbach  v.  Buddach,  127  Pa.  561. 


318  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

But  proof  of  insanity  at  one  period  as  an  independent  fact  will 
not  impeach  a  will  made  at  another  period.1  The  mental  disability 
of  a  party  at  some  period  prior  to  the  execution  of  his  will  is  not 
alone  sufficient  to  invalidate  it.2  And  a  jury  is  not  bound  to  find 
the  testator  insane  because  he  had  been  found  so  at  the  time  of 
making  a  subsequent  will,  a  few  weeks  later,  by  another  jury,  though 
they  find  that  there  had  been  no  material  change  in  his  mental  con- 
■  dition  between  the  times  at  which  the  wills  were  made.3  And 
prior  and  subsequent  insanity  are  only  important  as  they  throw 
light  upon  the  testator's  mind,  and  show  its  actual  condition  when 
the  will  was  executed.4  Where  he  is  found  to  have  a  sound  and 
disposing  mind  and  memory  at  the  time  the  will  is  made,  his  pre- 
vious and  subsequent  condition  is  not  to  be  considered.5  And 
conflicting  evidence  tending  to  show,  on  the  one  hand,  that  the 
testatrix  was  almost  an  idiot,  and,  on  the  other  hand,  that  she  re- 
tained her  mental  faculties,  narrows  the  controversy  to  the  time 
of  the  execution  of  the  will.6  It  must  be  left  to  the  presiding 
judge  to  determine  how  far  acts  of  the  testator  before  and  after 
the  execution  of  his  will  may  have  a  tendency  to  throw  light 
upon  his  actual  condition  at  the  date  of  his  will,7  the  fact  that  the 
evidence  refers  to  a  prior  and  subsequent  period  going  to  the 
effect  or  weight  and  importance  to  be  attached  to  it  rather  than 
to  its  admissibility  ;8  and  the  weight  to  be  given  it  with  reference 
to  the  length  of  time  elapsing  is  for  the  determination  of  the  jury,9 
the  value  diminishing  as  a  general  rule  in  proportion  to  the  re- 
moteness from  the  date  of  the  making  of  the  will.10  And  where 
senile  dementia   is  alleged,  which  must  of  necessity  be  of  long 

1  Terry  v.  Buffington,  11  Ga.  337,  56  Am.  Dec.  423.  And  see  "Wheeler  v. 
Alderson,  3  Hagg.  Eccl.  Bep.  574. 

-  Brown  v.  Torrey,  24  Barb.  583;  Beichenbach  v.  Ruddaeh,  127  Pa.  564; 
Holloway  v.  Galloway,  51  III.  159. 

3  Sewall  v.  Bobbins,  139  Mass.  164. 

4  Chrisman  v.  Chrisman,  16  Or.  127. 
6  Grubbs  v.  McDonald,  91  Pa.  236. 

6  Sheldon  v.  Dow,  1  Dem.  503. 

'  Shailer  v.  Bumstead,  99  Mass.  112. 

8  Conely  v.  McDonald,  40  Mich.  150. 

9  Dale's  Appeal,  57  Conn.  127. 

10  Thompson  v.  Ish,  99  Mo.  160.  And  see  Davis  v.  Latta,  93  Iowa,  811; 
Be  Lfflibridge's  Estate,  133  Pa.  211. 


LEGAL   ADJUDICATIONS    IN    CIVIL    CASES.  319 

standing  and  progressive,  testimony  covering  a  connected  period 
of  six  years  after  the  execution  of  the  will  is  not  too  remote.1 
But  a  finding  that  there  was  no  evidence  of  incapacity  is  proper 
where  the  only  testimony  given  to  establish  it  was  that  of  a 
daughter  who  had  seen  the  testator  about  five  years  before  his 
death,  and  of  a  granddaughter  who  had  seen  him  about  four 
years  before.2  And  mental  incompetency  not  amounting  to  idiocy 
must  be  shown  by  testimony  of  witnesses  who  had  personal 
knowledge  of  the  facts  within  twenty  years  previous  to  the  time 
the  will  was  executed,3  and  evidence  of  incapacity  must  be  very 
strong  to  overthrow  a  will  twenty  years  after  the  death  of  the 
testator.4 

So,  proof  of  previous  or  subsequent  insanity  is  liable  to  be  over- 
come by  evidence  tending  to  show  competency  at  the  exact  time 
the  will  was  made.5  And  evidence  of  consciousness  and  ration- 
ality at  the  time  given  by  subscribing  witnesses  and  others  who 
were  then  present  will  sustain  a  will  as  against  proof  that  the  tes- 
tator was  delirious  several  hours  before,1  or  as  against  evidence 
that  he  labored  under  an  insane  delusion  on  the  three  days  pre- 
ceding its  execution,  and  that  he  committed  suicide  on  the  day 
following  its  execution,  where  it  was  drawn  by  himself  and  was 
rational  in  its  nature.7  Nor  is  such  evidence  overcome  by  proof 
of  the  delirium  of  typhoid  fever  which  was  intermittent  at  fre- 
quent intervals,  approaching  very  near  to  the  time  of  the  execu- 
tion of  the  will.8  And  evidence  of  flightiness  and  mental  aberra- 
tion, not  applying  to  the  exact  time  of  making  a  will,  will  not 
invalidate  it  where  the  will  was  natural  and  in  accordance  with 
previously  formed  intentions,  and  afterwards  republished  express- 
ing the  dispositions  made  with  great  deliberation.9  But  mere 
proof  of  calmness  on  the  part  of  a  testator,  and  of  his  transacting 
matters  of  formal  business  under  the  sanction  of  his  family,  is 

1  Bever  v.  Spangler,  93  Iowa,  576. 

2  Davis  v.  Latta,  93  Iowa,  811. 
3Hoban  v.  Campau,  52  Mich.  346. 

4  Ee  Lillibridge's  Estate,  133  Pa.  211. 

*  Whitenack  v.  Stryker,  2  N.  J.  Eq.  8. 

« Ee  Lyddy's  Will,  5  N.  Y.  Supp.  636. 

,  Chambers  v.  Queen's  Proctor,  2  Curt.  Eccl.  Eep.  415. 

s  Ee  Bush's  Will,  5  N.  Y.  Supp.  23. 

9  Ee  Mahouey's  Will,  58  Hun,  608,  34  N.  Y.  S.  E.  183. 


320  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

not  sufficient  to  rebut  the  presumption  of  incapacity  arising  from 
insanity  before  the  execution  of  his  will.1 

§  27.   Testimony  of  attesting  witnesses  and  others  present. 

The  testimony  of  the  subscribing  witnesses  to  a  will  concerning 
the  testator's  mental  condition  and  the  circumstances  attending 
its  execution  is  entitled  to  great  weight  upon  the  question  of 
testamentary  capacity  where  they  are  persons  of  intelligence  and 
veracity,2  and  so  is  that  of  the  attending  physicians.3  And  next 
after  them  evidence  of  others  who  were  present  at  the  execution 
of  the  will  is  to  be  mainly  relied  upon.4  And  an  instruction  that 
ordinarily  those  witnesses  who  come  nearest  to  the  very  time  of 
making  the  will  would  be  most  valuable  if  they  seem  worthy  of 
credit,  and  that  therefore  the  testimony  of  the  subscribing  wit- 
nesses is  to  be  carefully  considered,  is  not  objectionable  as  telling 
the  jury  that  their  testimony  was  entitled  to  greater  weight  than 
that  of  other  witnesses  having  the  same  means  of  knowledge.6 
Where  the  will  appears  fair,  and  the  subscribing  witnesses  were 
above  suspicion  and  aware  of  and  competent  to  perform  their 
duty,  the  incapacity  which  will  invalidate  a  will  should  be  estab- 
lished by  facts  showing  a  defect  of  mind  existing  in  a  form  that 
might  not  have  been  detected.6  And  evidence  as  to  testamentary 
capacity  by  the  subscribing  witnesses  satisfies  the  burden  of  proof 
resting  upon  the  proponent,  making  it  the  duty  of  the  jury  to 
determine  the  question  of  capacity  from  the  weight  of  all  the 
evidence  introduced  by  all  the  parties,7  though  the  burden  is  not 
shifted  by  such  evidence  under  a  statutory  provision  that  every 
person  of  sound  mind  may  make  a  will.8 

So,  the  rule  has  been  laid  down  that  subscribing  as  a  witness  to  a 
will  is  an  assertion  by  the  subscriber  that  the  testator  was  of  sound 

1  Evans  v.  Thomas,  2  Hagg.  Eccl.  Eep.  433. 

2  Jamison  v.  Jamison,  3  Houst.  (Del.)  108;  Whitenack  v.  Stryker,  2  N.  J. 
Eq.  8;  Cornelius  v.  Cornelius,  7  Jones,  L.  593;  Martin  v.  Thayer,  37  W. 
Va.  38;  Harrison  v.  Bo-wan,  3  Wash.  C.  C.  580;  Den,  Stevens,  v.  Vancleve, 
4  Wash.  C.  C.  262. 

3  Cornelius  v.  Cornelius,  7  Jones,  L.  593. 

4  Den,  Stevens,  v.  Vancleve,  4  Wash.  C.  C.  262. 

5  Foster  v.  Dickerson,  64  Vt.  233. 

6  Means  v.  Means,  5  Strobh.  L.  167. 

"  Pendlay  v.  Eaton,  130  El.  69;  Wilbur  v.  Wilbur,  129  El.  392. 
s  Crowninshield  v.  Crowninshield,  2  Gray,  524. 


LEGAL    ADJUDICATIONS    IN   CIVIL    CASES.  321 

mind  at  the  time ; '  and  that  proof  of  his  signature  is  prima  facie 
evidence  of  the  testator's  competency.*  But  the  contrary  rule  has 
been  elsewhere  held,  that  the  attestation  of  a  will  furnishes  no  evi- 
dence of  any  opinion  as  to  the  sanity  of  the  testator,3  and  that  where 
the  attesting  witnesses  to  a  will  are  dead  there  is  no  presumption 
that  if  living  they  would  testify  that  the  testator  was  of  sound  mind 
when  he  made  his  will.4  So,  as  a  general  rule,  the  subscribing 
witnesses  are  deemed  to  have  been  placed  around  the  testator  to 
ascertain  and  judge  as  to  his  capacity,  and  are  required  to  be  pro- 
duced if  living  and  subject  to  the  process  of  the  court.5  And 
proof  of  a  will  by  one  subscribing  witness  only  is  insufficient 
under  a  statute  requiring  the  subscribing  witnesses  to  attest  not 
only  the  corporal  act  of  signing,  but  also  the  sanity  of  the  tes- 
tator," or  under  one  requiring  the  subscribing  witnesses  to  swear 
they  believe  the  testator  to  be  of  sound  mind.7  And  where  one 
subscribing  witness  testifies  in  favor  of  sanity,  and  the  other 
against  it,  other  witnesses  cannot  be  called  to  establish  the  will.8 
To  entitle  a  will  devising  real  estate  to  probate,  competency  and 
freedom  from  restraint  must  properly  be  shown  by  the  testimony 
of  at  least  two  subscribing  witnesses  who  should  have  had  at 
least  some  acquaintance  with  the  testator.9  And  the  testimony 
of  a  single  subscribing  witness  who  M7as  a  stranger  to  the  testator, 
the  other  being  dead,  is  not  sufficient  under  a  statute  providing 
for  probate,  where  it  appears  to  the  surrogate  that  the  testator 
was  competent  to  make  a  will.10     But  where  a  will  is  merely  re- 

1  Egbert  v.  Egbert,  78  Pa.  326;  Harden  v.  Hayes,  9  Pa.  151;  Sellars  v. 
Sellars,  2  Heisk.  430.  And  see  Scribner  v.  Crane,  2  Paige,  147,  21  Am. 
Dec.  81. 

2  Harden  v.  Hays,  9  Pa.  151;  Hey  ward  v.  Hazard,  1  Bay,  335;  Evans  v. 
Arnold,  52  Ga.  169. 

3  Baxter  v.  Abbott,  7  Gray,  71. 

4  Boardman  v.  Woodman,  47  N.  H.  120;  Flanders  v.  Davis,  19  N.  H.  139. 

5  Chase  v.  Lincoln,  3  Mass.  237.  And  see  Bootle  v.  Blundell,  19  Ves. 
Jr.  494. 

6  Withington  v.  Withington,  7  Mo.  589. 

7  See  Allison  v.  Allison,  46  HI.  61,  92  Am.  Dec.  237;  Weld  v.  Sweeney, 
85  HI.  50. 

8  Weld  v.  Sweeney,  85  111.  50. 

9  Swenerton  v.  Hancock,  9  Abb.  N.  C.  326. 
10  Ramsdell  v.  Viele,  6  Dem.  244. 

21 


322  MEDICAL   JURISPRUDENCE   OF    INSANITY. 

quired  to  be  attested  by  two  witnesses  it  may  be  proved  by  one 
of  them,  who  testifies  to  the  attestation  by  the  other,  and  to  the 
competency  of  the  testator,  though  the  other  does  not  testify.1 
And  under  this  rule  the  fact  that  such  witnesses  are  the  witnesses 
of  the  court,  and  not  of  either  party,  is  to  be  taken  into  con- 
sideration.2 It  has  been  held,  however,  that  the  inability  of  the 
subscribing  witnesses  to  testify  as  to  testamentary  capacity  does 
not  invalidate  the  will,  but  goes  only  to  the  credibility  of  the 
witnesses.3  and  that  it  is  not  necessary  that  such  witnesses 
should  be  cal]ed,  or  that  when  called  they  should  concur  in  their 
testimony.4  But  a  failure  to  examine  the  scrivener  who  wrote 
the  will  and  the  subscribing  witnesses,  to  uphold  it  in  a  doubtful 
case,  is  a  material  and  damaging  circumstance  against  its  validity.6 
The  testimony  of  subscribing  witnesses  to  a  will  as  to  sanity, 
however,  is  not  invested  by  law  with  any  fictitious  value  beyond 
what  it  is  worth  under  the  usual  considerations  governing  the 
value  of  other  testimony,  but  it  is  to  be  weighed  with  reference 
to  special  opportunity  and  occasion  to  observe  at  the  precise 
time,  as  well  as  with  reference  to  care,  skill,  judgment,  memory, 
and  veracity.6  They  are  not  necessarily  the  best  witnesses  to 
prove  the  sanity  of  the  testator,7  and  an  instruction  that  the  law 
presumes  from  the  oath  of  the  subscribing  witnesses  that  the  tes- 
tator was  of  sound  mind  and  memory  is  erroneous  as  likely  to 
lead  the  jury  to  believe  that  the  presumption  is  conclusive.* 
And  a  will  should  not  be  admitted  where  the  attesting  witnesses 
testify  merely  to  the  signature  of  the  testator  where  he  is  proved 
to  have  been  a  person  of  imbecile  mind.9  Nor  should  a  will  be 
probated  upon  the  testimony  of  a  subscribing  witness  that  he  did 
not  know  whether  the  testator  was  of  sound  mind  or  not  under  a 
statute  requiring  the  subscribing  witnesses  to  swear  they  believed 

1  Cheatham  v.  Hatcher,  30  Gratt.  56,  32  Am.  Eep.  650. 

2  Bootle  v.  Blundell,  19  Ves.  Jr.  494. 

3  Huff  v.  Huff,  41  Ga.  696. 

4  Kigg  v.  Wilton,  13  HI.  15,  54  Am.  Dec.  419. 

5  Ke  Ulmer's  Appeal  (Pa.)  11  Cent.  403. 

6  Thornton  v.  Thornton,  39  Vt.  122. 

7  McTaggart  v.  Thompson,  14  Pa.  149. 

8  Keithley  v.  Stafford,  126  HI.  527. 

*  Starnes  v.  Marten,   1  Curt.  Eccl.  Eep.  294;  Evans  v.  Arnold,  52  Ga. 
169. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  323 

the  testator  to  have  been  of  sound  mind,1  though  witnesses  need 
not  swear  positively  as  a  matter  of  fact  that  he  was  sane.2  And 
it  has  been  held  unnecessary  that  the  subscribing  witnesses  should 
state  their  opinions  as  to  the  testator's  mental  capacity,  as  such, 
opinions  are  necessarily  mere  inferences  drawn  from  facts  ob- 
served.3 

Nor  are  subscribing  witnesses  debarred  by  any  rule  of  law 
from  testifying  to  the  testator's  insanity.4  A  will  may  be  estab- 
lished against  the  testimony  of  subscribing  witnesses  who  depose 
against  the  testator's  capacity.5  And  where  the  subscribing  wit- 
nesses disagree  other  proof  may  be  given  on  the  question  of 
capacity,  leaving  the  jury  to  decide  upon  the  whole  evidence.8 
Where  the  subscribing  witnesses  testify  to  want  of  testamentary 
capacity  in  opposition  to  the  fair  significance  and  import  of  their 
act  in  attesting,  it  detracts  largely  from  the  weight  which  would 
otherwise  be  given  their  opinions,7  and  the  evidence,  though  ad- 
missible, will  be  received  with  the  most  scrupulous  jealousy.8 
JSTor  is  a  refusal  to  instruct  that  certain  testimony  against  sanity 
creates  a  strong  presumption  against  the  validity  of  the  will  erro- 
neous where  the  testimony  is  that  of  an  attesting  witness,  though 
he  was  also  the  testator's  attending  physician.9     And  a  subscrib- 

1  Allison  v.  Allison,  46  111.  61,  92  Am.  Dec.  237. 

2  Allison  v.  Allison,  46  HI.  61,  92  Am.  Dec.  237. 

3  Oilley  v.  Cilley,  34  Me.  162. 

4  Garrison  v.  Blanton,  48  Tex.  299;  Howard  v.  Braithwaite,  1  Ves.  &  B. 
202. 

5  Howard's  Will,  5  T.  B.  Mon.  199,  17  Am.  Dec.  60;  Maupin  v.  Wools,  1 
-Duv.  223;  Higgins  v.  Carlton,  28  Md.  115,  92  Am.  Dec.  666;  Sechrest  v. 

Edwards,  4  Met.  (Ky.)  163;  Ee  Jenkins's  WiU,  43  Wis.  610;  Le  Breton  v. 
Fletcher,  2  Hagg.  Eccl.  Eep.  558;  Low  v.  Jolliffe,  1  W.  Bl.  365;  Bootle 
v.  Blundell,  19  Ves.  Jr.  494. 

6  Eigg  v.  Wilton,  13  IU.  15,  54  Am.  Dec.  419. 

7  Be  Storey's  WiU,  20  HI.  App.  183;  McMeekin  v.  McMeekin,  2  Bush, 
79;  Garrison  v.  Garrison,  15  N.  J.  Eq.  266;  Ee  Cook's  Estate,  16  Phila. 
322;  Cheatham  v.  Hatcher,  30  Gratt.  56,  32  Am.  Eep.  650;  Ee  Lewis's 
Will,  51  Wis.  101;  Jones  v.  Goodrich,  5  Moore  P.  C.  16. 

8  Hoerth  v.  Zable,  92  Ky.  202;  Ee  Cook's  Estate,  41  Phila.  Leg.  Int.  6; 
Lamberts  v.  Cooper,  29  Gratt.  61;  Young  v.  Barner,  27  Gratt.  96;  Den, 
Stevens,  v.  Vancleve,  4  Wash.  C.  C.  262 ;  Harrison  v.  Eowan,  3  Wash.  C.  C. 
580;  Bootle  v.  Blundell,  19  Ves.  Jr.  494;  Howard  v.  Braithwaite,  1  Ves.  & 
B.  202. 

9  Thornton  v.  Thornton,  39  Vt.  122. 


324:  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

ing  witness  testifying  against  sanity  may  be  contradicted  by  the 
party  calling  him  by  reading  his  evidence  at  a  former  trial,  or  by 
proof  of  declarations  made  at  other  times.1  And  evidence  of  an 
attesting  witness,  that  the  testator  was  incompetent,  will  not 
affect  the  validity  of  the  will  as  against  testimony  of  the  other  in 
favor  of  capacity,  where  it  was  at  variance  with  previous  state- 
ments made  by  him.3  But  a  subscribing  witness  who  contradicts 
'his  own  attestation  by  statements  that  the  testator  was  incompe- 
tent may  be  a  good  witness  to  support  another  witness  with  refer- 
ence to  other  matters.3 

§  28.  Preparation  of  the  will. 

The  fact  that  a  will  was  written  by  the  testator  himself,  and 
that  its  provisions  were  sensible  and  judicious,  is  cogent  evidence 
of  testamentary  capacity  at  the  time  of  making  it,4  and  it  is 
prima  facie  evidence  of  his  competency,  casting  the  burden  of 
proof  upon  those  who  allege  the  contrary  to  repel  the  presump- 
tion of  sanity.6  And  the  evidence  of  unsoundness  to  overcome  a 
will  written  or  dictated  by  the  testator  without  prompting,  which 
is  in  itself  intelligible  and  consistent,  disposing  of  all  of  his  prop- 
erty, must  be  very  strong  and  convincing.6  The  fact  that  the 
testator  either  wrote  or  dictated  his  will  shows  his  mental  and 
physical  capability  of  doing  whatever  the  instrument  shows  was 
done,  leaving  only  the  question  whether  or  not  the  will  on  its  face 
indicated  that  it  emanated  from  an  unsound  mind.7  So,  the  mi- 
nute recollection  of  a  testator  of  instructions  given  for  the  prepara- 
tion of  his  will  some  time  afterwards  is  cogent  evidence  of  capaci- 

1  Harden  v.  Hays,  9  Pa.  151. 

3  Cheatham  v.  Hatcher,  30  Gratt.  56,  32  Am.  Eep.  650. 

3  Broome  y.  Ellis,  2  Lee,  Eccl.  Eep.  528. 

*  Overton  v.  Overton,  18  B.  Mou.  61;  Weir's  Will,  9  Dana,  434;  Ee  Vio- 
let's WiU,  1  Bibb,  617;  Coghlan  v.  Coghlan,  cited  in  1  Phillim.  120;  Singer 
v.  Isbey,  4  Lane.  L.  Eev.  193;  Ee  Berrien's  Will,  35  N.  Y.  S.  E,  255; 
Chambers  v.  Queen's  Proctor,  2  Curt.  Eccl.  Eep.  415. 

6  Temple  v.  Temple,  1  Hen.  &  M.  476;  Hawkins  v.  Grimes,  13  B.  Mon. 
257;  Kingsbury  v.  Whitaker,  32  La.  Ann.  105,  36  Am.  Eep.  278;  Ee  Bey, 
46  La.  Ann.  773,  24  L.  E.  A.  577. 

6  Spratt  v.  Spratt,  76  Mich.  384;  Fulleck  v.  Allinson,  3  Hagg.  Eccl.  Eep. 
527. 

''  Spratt  v.  Spratt,  76  Mich.  384.  And  see  Pancoast  v.  Graham,  15  X.  J. 
Eo,  294;  Kinne  v.  Johnson,  60  Barb.  69. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  325 

ty,  though  his  mind  may  have  been  greatly  impaired.1  And  a 
will  which  is  the  work  of  the  testator  himself,  making  a  just  dis- 
position of  his  property,  which  was  not  procured  by  duress  or 
undue  influence,  will  be  sustained  though  he  was  very  old  and 
confined  to  his  bed  by  local  affliction.2  And  evidence  that 
the  testator  dictated  his  will  without  interference,  and  under- 
stood its  contents,  will  sustain  the  will  as  against  evidence  of 
age  and  its  attendant  infirmities,3  or  that  he  was  weak-minded 
and  spoke  disconnectedly  and  talked  to  himself  and  never  at- 
tended to  business,4  or  as  against  a  strong  array  of  medical  and 
other  testimony  against  his  sanity.5  So,  evidence  that  a  testator 
had  contemplated  making  a  will,  and  selected  the  attorney  to 
draw  it,  and  given  directions  specifically,  clearly,  and  understand- 
ing^, stating  his  general  design,  and  discussing  its  various  parts, 
will  sustain  the  will  as  against  evidence  of  defective  memory  and 
incoherency  and  unreasonableness  and  inability  to  understand.9 
And  the  fact  that  a  testator  sent  for  an  attorney  to  prepare  his 
will,  and  informed  him  that  he  was  to  make  an  alteration  in  a 
former  will,  dictating  its  terms  and  provisions,  is  cogent  evidence 
of  his  capacity,  notwithstanding  previous  statements  that  he  was 
satisfied  with  the  former  will.7  Nor  will  subsequent  loose  dec- 
larations affect  the  validity  of  a  will  when  it  appears  that  the  tes- 
tator understood  the  nature  of  the  act  and  the  disposition  he  was 
making.8  And  the  facts  that  a  will  was  dictated  to  a  strange  at- 
torney, who  knew  nothing  of  the  testator's  property,  family,  or 
testamentary  purposes,  and  that  the  will  itself  evidenced  an 
intelligent  understanding  of  its  terms  and  a  knowledge  of  the 
claims  upon  his  bounty,  are  sufficient  to  satisfy  the  court  that  the 

1  Tomkins  v.  Tomkins,  1  Bail.  L.  92,  19  Am.  Dec.  656;  Ee  Napfle's  Es- 
tate, 134  Pa.  492. 

2  "Watson  v.  Watson,   2  B.  Mon.   374;  Coghlan  v.  Coghlan,  cited  in  1 
Phillim.  120. 

s  Ee  Pensyl,  157  Pa.  465. 

4Errickson  v.  Fields,  30  N.  J.  Eq.  634.     And  see  Ee  Napfle's  Estate,  134 
Pa.  492. 

6  Pancoast  v.  Graham,  15  N.  J.  Eq.  294;  Spratt  v.  Spratt,  76  Mich.  384. 

6  Pilling  v.  Pilling,  45  Barb.  86. 

1  Martin  v.  Thayer,  37  W.  Va.  38. 

8  Irwin  v.  Deschamps,  11  W.  N.  C.  365. 


326  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

will  represented  his  intentions.1  So,  a  testator  cannot  be  held 
incompetent  to  transact  business  where  after  his  will  is  read  to 
him  he  objects  to  it  as  not  being  as  he  wants  it  and  directs  that  it 
be  drafted  differently.2  A  will  not  shown  to  have  been  written 
by  the  testator,  or  in  pursuance  of  instructions  given  by  him, 
however,  is  not  of  itself  evidence  of  testamentary  capacity.3  And 
the  burden  of  proving  a  will  resting  with  the  propounder  is 
"generally  discharged  by  proof  of  capacity,  and  the  fact  of  execu- 
tion from  which  a  knowledge  of  and  assent  to  its  contents  might 
be  presumed.4  But  a  will  will  not  be  deemed  the  act  of  a  testator 
who  was  very  old  and  infirm  and  deaf  and  almost  blind,  where  it 
was  drawn  from  directions  given  by  the  executor,  and  no  instruc- 
tions are  proved  to  have  been  given  by  him  ;5  and  proof  that  a 
testator  answered  questions  relating  to  his  will  at  the  time  of  its 
execution  is  not  sufficient  to  show  testamentary  capacity." 

§  29.  Rationality. 

Dispositions  made  by  a  testator  of  his  property,  as  well  as  the 
character  and  circumstances  of  the  person  appointed  to  execute 
his  will,  are  proper  subjects  for  consideration  upon  the  issue  of 
testamentary  capacity.7  And  it  is  permissible  to  inquire  whether 
a  will  is  just  and  reasonable  and  consonant  with  the  state  of  the 
testator's  family  relations.8  Where  the  capacity  of  a  testator  is 
doubtful  the  rationality  of  his  will  is  a  circumstance  in  favor  of 
capacity."  The  best  proof  of  a  sound  mind  is  a  rational  act  ra- 
tionally done.M     Though  a  charge  to  the  effect  that  the  will  itself 

1  Dickie  v.  Tan  Yleck,  5  Eedf.  284. 

2  Stuyvesant  v.  Wilcox,  92  Mich.  228. 

3  Singer  v.  Isbey,  4  Lane.  L.  Rev.  193. 

4  Barry  v.  Butlin,  2  Moore,  P.  C.  482. 

5  Sankey  v.  Lilley,  1  Curt.  Eccl.  Rep.  391. 

6  Goldie  v.  Murray,  6  Jur.  608. 

'•  Prather  v.  McClelland,  76  Tex.  574;  Gombault  v.  Public  Administrator, 
4  Bradf.  226. 

3 Fountain  v.  Brown,  38  Ala.  72;  Denison's  Appeal,  29  Conn.  399;  Evans 
v.  Arnold,  52  Ga.  169. 

9  Tomkins  v.  Tomkins,  1  Bad.  L.  92,  19  Am.  Dec.  656;  Griffin  v.  Griffin, 
R.  M.  Charlt.  217;  Kinne  v.  Johnson,  60  Barb.  69. 

10  Weir's  Will,  9  Dana,  434;  Chambers  v.  Queen's  Proctor,  2  Curt.  Eccl 
Rep.  415. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  327 

is  the  best  evidence  of  sanity  is  objectionable  as  an  instruction 
upon  the  weight  of  evidence.1  The  production  of  a  will  executed 
according  to  law,  which  is  rational  on  its  face,  furnishes  a  prima 
facia  case  of  testamentary  capacity,2  and  rationality  and  equality 
in  a  will  made  without  dictation  from  others  are  conclusive  of  the 
testator's  sanity.3  In  judging  of  the  reasonableness  of  a  will, 
however,  due  allowance  must  be  made  for  caprice,4  and  it  should 
not  be  set  aside  on  unsatisfactory  evidence  aliunde  where  its  pro- 
visions are  not  so  extraordinary  as  to  furnish  evidence  on  inca- 
pacity or  undue  influence.6  Nor  is  the  inquiry  cut  off  by  the  de- 
velopment of  facts  tending  to  vindicate  the  wisdom  and  fitness 
of  the  appointment  of  an  executor.6  Mere  obscurity  of  language 
in  a  will  is  not  evidence  of  testamentary  incapacity  where  the  tes- 
tator comprehended  it  and  it  expressed  his  ideas  correctly.7  IS' or 
is  incapacity  shown  by  grammatical  inaccuracies  in  a  will,  and  a 
want  of  knowledge  of  points  of  law  or  omission  of  a  part  of  the 
testator's  property.8  And  a  mistake  in  a  will  as  to  the  testator's 
age,  and  as  to  the  order  in  which  his  daughters  were  born,  and 
calling  adopted  children  grandchildren,  will  not  invalidate  it  as 
against  direct  evidence  of  strength  and  vigor  of  mind.9  Though 
the  fact  that  the  name  of  the  testator,  signed  to  the  will,  is  writ- 
ten and  spelled  differently  from  his  usual  mode,  is  a  circumstance 
for  the  consideration  of  the  jury.10 

So,  a  will  made  by  a  testatrix  giving  her  property  to  a  nephew 
who  had  assisted  her  in  opposing  attempts  of  other  relatives  to 
get  possession  of  her  property  will  be  upheld  though  she  was  un- 
der the  control  of  a  commission  in  lunacy,  where  its  provisions 

1  Vance  v.  Upson,  66  Tex.  476. 

4  McCulloch  v.  Campbell,  49  Ark.  367;  Chandler  v.  Barrett,  21  La.  Ann. 
58;  Kingsbury  v.  Whitaker,  33  La.  Ann.  1055,  36  Am.  Eep.  278;  Ee  Bey, 
46  La.  Ann.  773,  24  L.  B.  A.  577;  Pancoast  v.  Graham,  15  N.  J.  Eq.  294; 
Symes  v  Gr;en:  5  Jur.  N.  S.  742,  1  Swab.  &  T.  401. 

s  Be  M'Daniel's  Will,  2  J.  J.  Marsh.  331. 

4  Tomkins  v.  Tomkins,  1  Bail.  L.  92,  19  Am.  Dec.  656. 

5  Means  v.  Means,  5  Strobh.  L.  167. 

6  Prather  v.  McCleUand,  76  Tex.  574. 

7  Ee  Soule,  22  Abb.  N.  C.  236. 

8  Temple  v.  Temple,  1  Hen.  &  M.  476. 

9  Mairs  v.  Freeman,  3  Eedf.  181. 

10  McMechen  v.  McMechen,  17  W.  Va.  683,  41  Am.  Eep.  682. 


328 


MEDICAL   JURISPRUDENCE    OF    INSANITY. 


were  the  same  as  those  of  a  previous  will  made  when  her  sanity 
was  unquestionable.1  And  a  statement  by  a  deformed  testatrix, 
that  she  gave  her  property  to  her  mother  because  of  the  great 
care  and  pains  she  had  taken  with  her  since  her  infancy  because 
of  her  deformity,  is  strong  proof  of  testamentary  capacity.2  And 
a  codicil  to  a  will  which  is  indefinite  should  not  be  construed  so 
as  to  be  so  absurd  as  to  indicate  unsoundness  of  mind  where  it  is 
capable  of  a  construction  which  would  be  reasonable.3  Nor  is  a 
will  withdrawn  from  consideration  of  the  jury  as  evidence  of  tes- 
tamentary capacity  by  an  instruction  that  unless  the  evidence 
shows  that  the  testator  was  of  sound  mind  the  instrument  pre- 
sented cannot  be  regarded  as  his  will  however  it  was  drawn.* 
And  the  devotion  by  a  testator  of  a  larger  portion  of  his  estate  to 
the  purpose  of  aiding  and  paying  off  the  debt  incurred  in  subdu- 
ing of  the  rebellion  is  not  such  an  unreasonable  disposition  as  to 
furnish  evidence  of  testamentary  incapacity.5  Nor  does  a  will 
giving  a  legacy  to  a  dead  sister  tend  to  show  want  of  testamentary 
capacity  where  it  does  not  appear  that  the  testatrix  knew  of  her 
death  when  she  made  the  will.6  Evidence  that  the  testator  fre- 
quently changed  a  lease  and  finally  did  not  execute  it  shows  noth- 
ing but  fickleness  and  caprice,  and  will  not  affect  the  validity  of 
his  will.7  Nor  will  a  speculative  valuation  placed  by  him  on  his 
property  show  an  imbecile  mind,  though  it  might  be  a  slight  cir- 
cumstance when  connected  with  other  facts  tending  to  show  tes- 
tamentary incapacity.8  Nor  is  the  fact  that  the  testator's  bequest 
exceeded  the  amount  of  his  estate  sufficient  of  itself  to  impeach 
his  soundness  of  mind,  though  it  might  be  a  circumstance  which 
would  aid  a  case  of  doubtful  capacity.9  And  a  will  which  leaves 
the  residue,  after  giving  various  legacies,  to  the  poor  of  a  desig- 
nated city,  and  for  the  erection  of  a  cenotaph  therein  inscribed 
with  his  name,  is  not  so  absurd  and  irrational  as  to  justify  refusal 

1  Ee  Pendleton,  1  Connoly,  480. 

2  Ee  Howard's  Will,  5  T.  B.  Mon.  199,  17  Am.  Dec.  60. 

3  Ee  Weir's  Will,  9  Dana,  434. 

4  Vance  v.  Upson,  66  Tex.  476. 
6  Be  Lewis,  33  N.  J.  Eq.  219. 

6  McMasters  v.  Scriven,  85  Wis.  162. 
1  Jackson  v.  Hardin,  83  Mo.  175. 
8  Stokes  v.  Shippen,  13  Bush,  183. 
» Tunison  v.  Tunison,  4  Bradf .  138. 


LEGAL    ADJUDICATIONS    LN    CIVIL   CASES.  329 

to  probate,  where  testator  was  familiar  with  and  believed  in  the 
habits  and  superstition  in  vogue  in  that  city.1  Nor  will  a  state- 
ment of  the  testator  to  a  daughter  whom  he  had  disinherited,  that 
he  had  given  her  a  designated  sum  show  testamentary  incapacity.2 
And  a  statement  by  a  testator  that  a  certain  slave  ought  to  be  set 
free,  made  after  having  made  a  will  emancipating  him,  does  not 
show  insanity  where  he  was  not  the  sole  owner  of  the  slave  and 
his  will  alone  could  not  free  him.' 

So,  a  much  greater  degree  of  evidence  is  requisite  to  support  a 
will  sounding  in  folly  or  frenzy  than  one  purporting  to  give  ef- 
fect to  probable  and  rational  intentions ; 4  thus,  a  will  giving  two 
parcels  of  land  of  a  designated  number  of  acres  each  for  home- 
steads, describing  them  in  such  a  manner  as  to  be  about  a  mile 
long  and  only  a  few  rods  wide  and  entirely  worthless  for  home- 
steads, furnishes  cogent  evidence  that  the  testator  did  not  know 
what  he  was  doing.5  And  a  will  leaving  a  son  and  daughter, 
both  of  whom  were  insane  and  poor,  a  mere  pittance,  giving  the 
balance  of  a  large  property  for  the  building  and  adorning  of  a 
marble  tomb,  is  invalid  and  not  entitled  to  probate.6  So,  a  dec- 
laration on  the  part  of  a  testator  possessed  of  considerable  wealth, 
that  he  wished  to  put  it  where  it  would  roll  up  to  the  day  of 
judgment,  pursuant  to  which  he  willed  it  to  an  association,  is 
evidence  of  an  insane  delusion  which  would  invalidate  his  will.7 
And  a  will  disinheriting  a  sister,  nieces,  and  nephews,  for  all  of 
whom  the  testator  entertained  friendly  feeling,  giving  his  prop- 
erty to  a  church  association,  not  to  advance  the  cause  of  religion, 
but  with  the  idea  that  his  body  would  be  preserved  to  the  end  of 
time  by  means  of  a  metallic  coffin  or  otherwise,  is  invalid.8  Nor 
will  a  will  be  admitted  to  probate,  though  the  instructions  were 
rational  and  the  testamentary  paper  was  properly  executed,  where 
it  appears  that  the  testator  had  been  afflicted  with  a  delusion,  the 

1  Austen  v.  Graham,  29  Eng.  L.  &  Eq.  38. 

2  Clarke  v.  Davis,  1  Eedf.  249. 

3  Ke  Weir's  Will,  9  Dana,  434. 

4  Evans  v.  Knight,  1  Add.  Eccl.  Eep.  229. 

5  Lawrence  v.  Steel,  66  N.  C.  584. 

6  Be  Ramsdall,  20  K  Y.  S.  R.  466,  51  Hun,  636. 

7  American  Bible  Soc.  v.  Price,  115  111.  623. 

8  Morse  v.  Scott,  4  Dem.  507. 


330  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

continued  existence  of  which  he   had   been  instructed   to   con- 
ceal.1 

§  30.  Equality  and  justice. 
The  reasonableness,  equality,  and  consistency  of  the  disposi- 
tions contained  in  a  will  are  entitled  to  consideration  on  the  ques- 
tion of  testamentary  capacity,  particularly  where  the  evidence  is 
conflicting.2  The  intrinsic  evidence  offered  by  a  will  apparently 
rational,  just,  and  prudent,  and  dictated  by  a  testator  of  a  self- 
poised  and  testamentary  mind,  will  outweigh  the  mere  opinions 
of  witnesses  that  he  was  incompetent.3  So.  a  will  may  by  its 
provisions  furnish  intrinsic  evidence  involving  it  in  suspicion  and 
tending  to  show  incapacity  of  the  testator  to  make  a  disposition 
of  his  estate  with  judgment  and  understanding  with  reference  to 
the  amount  and  situation  of  his  property,  and  the  relative  claims 
of  the  different  persons  who  should  have  been  the  objects  of  his 
bounty.4  And  an  unequal  distribution  of  a  testator's  estate 
among  his  children  is  a  circumstance  calculated  to  arouse  suspi- 
cion, and  should  go  to  the  jury  on  the  question  of  mental  incapaci- 
ty,5 and  undue  influence.6  And  while  a  testator  of  sound  mind 
may  make  such  a  disposition  of  his  property  as  he  pleases,  it  is 
error  to  instruct  the  jury  that  the  contents  of  the  will  are  not 
evidence  of  testamentary  incapacity,  however  unreasonable  and 
absurd  its  disposition  may  be,  where  it  is  impeached  on  the 
ground  of  fraud  and  imposition.7     Xor  will  an  instruction  that 

1  Prinsep  v.  Dyce  Sombre,  10  Moore  P.  C.  232;  Sombre  v.  Troup,  1  Dearie 
&  S.  22.     And  see  Symes  v.  Green,  5  Jur.  N.  S.  742,  1  Swab.  <te  T.  401. 

9  Young  v.  Barner,  27  Gratt.  96;  Sim  v.  Russell,  90  Iowa,  656;  Gombault 
v.  Public  Administrator,  4  Bradf.  226;  Clark  v.  Fisher,  1  Paige,  171,  19 
Am.  Dee.  402;  Frazer  v.  Frazer,  2  Del.  Ch.  260. 

3  ALcMeekin  v.  McAleekin,  2  Bush,  79;  Griffin  v.  Griffin,  R.  M.  Charlt. 
217.     And  see  Singer  v.  Isbey,  4  Lane.  L.  Rev.  193. 

4  Davis  v.  Calvert,  5  Gill  &  J.  269;  Clark  v.  Fisher,  1  Paige,  171,  19  Am. 
Dec.  402. 

5Tobin  v.  Jenkins,  29  Ark.  151;  Hughes  v.  Hughes,  31  Ala.  519;  Knox 
v.  Knox,  95  Ala,  495;  Coleman  v.  Robertson,  17  Ala.  84.  Salisbury  v.  Al- 
drich,  118  HI.  199;  Conway  v.  Yizzard,  122  Ind.  266;  Lamb  v.  Lamb,  105 
Ind.  456;  Addington  v.  Wilson,  5  Ind.  137,  61  Am.  Dec.  81;  Gamble  v. 
Gamble,  39  Barb.  373;  Thompson  v.  Kyner,  65  Pa.  368;  Broaddus  v. 
Broaddus,  10  Bush,  299. 

6  Bledsoe  v.  Bledsoe  (Ky.)  1  S.  W.  10. 

7  Baker  v.  Lewis,  4  Rawle,  356.     And  see  Evans  v.  Arnold,  52  Ga.  169. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES. 


331 


no  weight  is  to  be  given  to  injustice  in  a  will,  unless  the  will  is 
actually  invalid  because  of  unsoundness  of  mind,  be  deemed  a 
harmless  error  where  there  is  evidence  of  unsoundness,  though 
the  will  appears  to  be  much  as  the  testator  intended  to  make  it.1 
Gross  inequality  without  reason  therefor  suggested  in  the  will 
itself  requires  satisfactory  evidence  that  it  was  the  free  and  delib- 
erate offspring  of  a  disposing  mind,2  and  is  entitled  in  proportion 
to  its  degree  of  flagrancy  to  some  auxiliary  influence  on  the  ques- 
tion of  capacity,  fraud,  or  controlling  influence,  and,  unexplained 
and  combined  with  other  corroborating  evidence,  it  may  be  enti- 
tled to  great  influence.3  A  will  will  not  be  avoided,  however, 
merely  because  its  provisions  are  imprudent  and  not  to  be  ac- 
counted for,4  or  because  it  was  not  such  a  will  as  would  have 
been  expected  from  one  in  the  testator's  situation,6  or  because  its 
provisions  were  not  regarded  as  morally  right,8  or  because  of 
moral  obliquity  or  prejudice  exhibited  therein.7  Nor  will  an 
unnatural  or  unequal  disposition  of  property  per  se  destroy  the 
validity  of  the  will  when  it  was  executed  by  a  person  of  sound 
mind,8  in  the  absence  of  undue  influence,9  or  raise  a  presumption 
of  mental  incapacity,10  though  it  is  cogent  evidence  of  incapacity,11 

1  Sim  v.  Russell,  90  Iowa,  656. 

2  Harrel  v.  Harrel,  1  Duv.  203.     But  see  Broaddus  v.  Broaddus,  10  Bush, 
299. 

3  Kevil  v.  Kevil,  2  Bush,  614. 

4  Higgins  v.  Carlton,  28  Md.  115;  Burr  v.  Davall,  8  Mod.  59;  Davis  v. 
Calvert,  5  Gill  &  J.  269. 

5  Watson  v.  Donnelly,  28  Barb.  653;  Bice  v.  Bice,  50  Mich.  448,  53  Mich. 
432. 

6  Martin  v.  Mitchell,  28  Ga.  382;  Boss  v.  Christman,  1  Ired.  L.  209. 

7  Den,  Trumbull,  v.  Gibbons,  22  N.  J.  L.  117,  51  Am.  Dec.  253. 
8Mosser  v.  Mosser,  32  Ala.  551;  Blakey  v.  Blakey,  33  Ala.  611;  Hughes 

v.  Hughes,  31  Ala.  519;  Coleman  v.  Bobertson,  17  Ala.  84;  Potts  v.  House, 
6  Ga.  328,  50  Am.  Dec.  329;  Schneider  v.  Manning,  121  HI.  376;  Salisbury 
v.  Aldrich,  118  HI.  199;  Conway  v.  Vizzard,  122  Ind.  266;  Kevil  v.  Kevil, 
2  Bush,  614;  Be  Dietz,  41  N.  J.  Eq.  284;  Boylan  v.  Meeker,  28  N.  J.  L. 
274;  Be  Gleespin's  Will,  26  N.  J.  Eq.  523;  Be  Gross,  7  N.  Y.  S.  R.  739; 
Van  Pelt  v.  Van  Pelt,  30  Barb.  134;  Bowland  v.  Sullivan,  4  Desauss.  Eq. 
518;  Couch  v.  Eastham,  29  W.  Va.  784. 

9  Trezevant  v.  Bains,  85  Tex.  329;  Ross  v.  Christman,  1  Hed.  L.  209. 

10  Knox  v.  Knox,  95  Ala.  495. 

11  Be  Shaw's  Will,  2  Bedf.  107. 


332  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

and  mere  inequality,  however  great,  though  accompanied  by  evi- 
dence of  impaired  mind,  is  not  evidence  of  undue  influence.1 
And  the  fact  that  a  will  is  contrary  to  common  sense,  and  that 
it  outraged  common  feeling  and  displayed  a  want  of  ordinary 
affection,  is  not  sufficient  ij?so  facto  to  set  it  aside.2  Unless  a 
will  carries  clear  marks  on  its  face  of  being  the  product  of  a 
diseased  mind  its  injustice  or  unreasonableness  ought  not  to  be 
the  foundation  of  a  verdict  against  it,3  and  the  courts  will  not 
examine  into  the  wisdom  or  prudence  of  a  testator's  disposition 
merely  because  he  was  a  person  of  weak  understanding.4  The 
fact  that  a  testator  has  given  indication  of  mental  unsoundness 
does  not  charge  him  with  testamentary  incapacity  or  make  it 
necessary  to  view  every  instance  of  partiality  or  injustice  with 
strong  suspicion.6  An  injudicious  will,  though  it  will  be  re- 
garded with  suspicion,  if  it  can  be  accounted  for  on  any  other 
reasonable  hypothesis,  will  not  be  attributed  to  testamentary  inca- 
pacity.6 And  a  charge  that  an  unequal  distribution  requires 
strict  proof  of  fairness  is  error  as  tending  to  induce  the  jury  to 
attach  too  much  meaning  to  it.'  And  the  jury  should  not  be 
directly  notified  or  required  to  examine  and  pass  upon  the  ques- 
tion whether  the  will  is  just,  wise,  and  proper.8  It  is  improper, 
however,  for  the  court  to  single  out  inequality  of  disposition  in  a 
will  contest,  and  tell  the  jury  that  the  testator  had  a  right  to 
make  such  distinction  between  the  objects  of  his  bounty  as  he 
chose,  without  also  telling  them  that  any  gross  inequality  requires 
evidence  that  it  was  the  act  of  a  rational  mind.9  And  an  instruc- 
tion that  gross  inequality  without  reason  requires  satisfactory  evi- 
dence that  it  was  the  offspring  of  a  rational  mind  is  misleading 
as  calculated  to  divert  the  minds  of  the  jury  from  the  issue  of 

1  Ee  Storer,  28  Minn.  9. 

2  Thompson  v.  Kyner,  65  Pa.  368. 

3  Boylan  v.  Meeker,  28  N.  J.  L.  274;  Collins  v.  Osborn,  34  N.  J.  Eq. . 
511. 

4  Hill  v.  Nash,  41  Me.  585,  66  Am.  Dec.  266. 

5  Eeichenbach  v.  Buddach,  127  Pa.  564. 

6  Smith  v.  Smith,  48  N.  J.  Eq.  566. 
'  Tobin  v.  Jenkins,  29  Ark.  151. 

s  Carpenter  v.  Calvert,  83  HI.  62. 

9  Sherley  v.  Sherley,  81  Ky.  240;  Bledsoe  v.  Bledsoe  (Ky.)  1  S.  W.  10. 


LEGAL   ADJUDICATIONS    IN    CIVIL    CASES.  333 

mental  capacity  to  that  of  inequality.1  So,  a  testator,  when  of 
sound  mind  and  not  under  undue  influence,  may  dispose  of  his 
property  contrary  to  the  dictates  of  duty  and  of  natural  and 
moral  obligations  if  he  chooses.3  And  the  fact  that  a  will  is 
harsh,  capricious,  and  unjust  will  not  affect  its  validity.3  Thus, 
the  omission  by  a  testator'  to  mention  one  or  some  of  his  children 
in  his  will  will  not  alone  invalidate  it."  Nor  will  the  fact  that 
the  testator  distributes  his  property  among  certain  of  his  rela- 
tives, entirely  omitting  the  others.6  And  the  disposition  by  a 
testator  of  his  property  to  a  stranger  to  the  exclusion  of  his  broth- 
ers and  sisters  does  not  show  testamentary  incapacity.6  Nor  is 
the  fact  that  the  devisees  and  legatees  were  not  relatives,  but 
friends  only,  of  any  weight  in  support  of  a  claim  of  want  of  tes- 
tamentary capacity,  in  the  absence  of  other  evidence/  And  a 
capricious  bequest  of  a  large  legacy  to  a  stranger  of  but  a  few 
days'  acquaintance  may  be  evidence  of  caprice  or  of  sudden  gen- 
erous impulse,  but  is  not  of  itself  evidence  of  insanity.8  The 
affections  of  a  testator,  rather  than  the  apparent  equality  or 
justice  of  a  distribution,  are  the  true  test  of  a  natural  will.*  And 
discrimination  by  a  testator  against  a  son  whose  character  and 
conduct  had  displeased  him  does  not  show  mental  unsoundness.10 
Nor  will  a  bequest  by  a  testator  of  a  comparatively  small  portion 

1  Broaddus  v.  Broaddus,  10  Bush,  299. 

s  Bulger  v.  Boss,  98  Ala.  267;  Hoerth  v.  Zable,  92  Ky.  202;  Den,  Trum- 
bull, v.  Gibbons,  21  N.  J.  L.  117,  51  Am.  Dec.  253;  Be  Dietz,  41  N.  J. 
Eq.'  284;  Boylan  v.  Meeker,  28  N.  J.  L.  274;  Van  Pelt  v.  Van  Pelt,  30 
Barb.  134;  Lee  v.  Lee,  4  McCord,  L.  183,  17  Am.  Bep.  722;  Couch  v. 
Eastham,  29  W.  Va.  784. 

8  Sefton  v.  Hop  wood,  1  Post.  &  P.  578;  Gamble  v.  Gamble,  39  Barb. 
373. 

4  Snow  v.  Benton,  28  111.  306;  Addington  v.  Wilson,  5  Ind.  137,  61  Am. 
Dec.  81;  Bledsoe  v.  Bledsoe  (Ky.)  1  S.  W.  10;  Be  Springstead,  55  Him, 
603,  28  N.  Y.  S.  B.  186;  Clark  v.  EUis,  9  Or.  128;  Be  Cook's  Estate,  16 
Phila.  322;  Kirkwood  v.  Gordon,  7  Bich.  L.  478,  62  Am.  Dec.  418. 

6  Spratt  v.  Spratt,  76  Mich.  384.  And  see  Morris  v.  Morton,  14  Ky.  L. 
Bep.  360. 

6  Collins  v.  Brazill,  63  Iowa,  432. 

7  Smith  v.  James,  72  Iowa,  515. 

8  Herbert  v.  Winn,  24  La.  Ann.  385. 

9  Lucas  v.  Parsons,  27  Ga.  595. 

10  LaBau  v.  Vanderbilt,  3  Eedf.  384. 


334:  MEDICAL    JURISPRUDENCE    OF   INSANITY. 

of  his  estate  to  a  daughter  be  of  any  weight  where  it  appears  that 
there  had  been  an  estrangement  between  them.1  And  a  will  giv- 
ing the  testator's  entire  property  to  his  wife  is  not  an  unnatural 
one  which  will  raise  an  inference  of  testamentary  incapacity 
where  they  had  always  reposed  entire  confidence  in  each  other.1 
Nor  is  a  will  providing  more  liberally  for  the  testator's  wife  and 
daughter  than  for  his  other  children,  where  the  wife  and  daugh- 
ter had  won  his  affections  by  kindness.8  Nor  is  a  will  invalidated 
by  a  discrimination  in  favor  of  an  only  daughter  who  had  minis- 
tered to  the  testator's  wants,  as  against  granddaughters  who  had 
married  and  left  home  '*  or  by  one  in  favor  of  a  son  against  other 
children,  though  the  motive  was  an  inordinate  ambition  to  per- 
petuate the  success  of  the  particular  business  enterprise  in  which 
he  had  acquired  fame  and  fortune.5  And  in  considering  the  use 
of  the  term  "  advancement "  in  a  will,  and  considering  the  ques- 
tion with  relation  to  equality  of  distribution  and  its  bearing  upon 
the  testator's  sanity,  it  should  be  taken  to  include  any  benefit 
which  the  testator  might  have  reasonably  considered  to  have  been 
an  appropriation  of  his  estate.6  So,  the  fact  that  the  provisions 
made  by  a  testator  for  a  daughter  is  much  less  than  she  would 
have  received  in  case  of  his  intestacy,  however  unreasonable  and 
unjust  it  may  seem,  is  not  of  itself  evidence  of  testamentary  inca- 
pacity.7 JSor  is  the  fact  that  he  was  influenced  by  feelings  of 
resentment  and  dislike  causing  him  to  omit  a  part  of  his  children.8 
Neither  will  the  fact  that  a  mother  disinherited  her  child  prove 
testamentary  incapacity,  where  she  gave  her  property  to  her  hus- 
band, giving  as  a  reason  therefor  that  he  would  take  care  of  the 
child.9  And  a  will  of  a  testator  disinheriting  his  young,  mother- 
less child  is  not  thereby  rendered  invalid  where  he  requested  the 

'  Meeker  v.  Meeker,  75  HI.  260. 

2  Ee  Lyddy's  Estate,  24  N.  T.  S.  E.  607. 

3  Nailing  y.  Nailing,  2  Sneed,  630. 

*  Ee  Humphrey's  Will,  26  N.  J.  Eq.  513. 
6  LaBau  v.  Yanderbilt,  3  Eedf.  384. 
6  Barker  v.  Cornins,  110  Mass.  477. 
1  Ee  Tracy,  11  N.  Y.  S.  E.  103. 

8  Nicholas  v.  Kershner,  20  W.  Ya.  251;  Sanderson  v.  Sanderson,  52  N.  J- 
Eq.  243. 

3  Ee  Walther's  Will,  7  N.  Y.  Supp.  417. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  6oD 

legatee  to  keep  the  child  until  womanhood  or  death.1  Neither 
does  a  will  giving  the  property  of  the  testatrix  to  strangers  raise 
an  inference  of  want  of  mental  capacity  or  undue  influence  where 
she  was  separated  from  her  husband  and  unfriendly  with  him 
and  with  her  next  of  kin.2  Nor  is  a  will  making  no  provision 
for  the  testator's  wife  subject  to  attack  where  she  had  been  cruel 
and  unkind  to  him  and  driven  him  from  the  house.3  Nor  is  & 
disposition  of  property  to  strangers  instead  of  relatives,  from 
motives  of  gratitude  or  personal  attachment.4 

The  will  of  one  who  is  non  compos  mentis,  however,  is  a  null- 
ity, however  just  and  prudent  its  provisions  ma}r  be.5  And  a 
will  giving  all  a  testator's  property  to  strangers  furnishes  intrin- 
sic evidence  tending  to  show  incapacity,  though  it  is  not  enough 
per  se  to  justify  setting  aside  the  will.6  And  omission  of  a 
testator  to  provide  for  part  of  his  children,  though  not  itself 
sufficient  to  establish  incapacity,  is  entitled  to  great  considera- 
tion when  not  satisfactorily  accounted  for  and  there  is  evidence 
of  fraudulent  procurement.7  So,  the  wife  and  children  of  a  tes- 
tator are  the  natural  objects  of  his  affections,  and  where  they  are 
disinherited  it  is  proper  for  the  jury  to  consider  that  fact  upon 
the  question  as  to  whether  or  not  he  was  insane  or  laboring  under 
an  insane  delusion.8  And  an  unnatural  exclusion,  by  a  testator, 
of  his  only  daughter  from  participation  in  his  estate,  with  whom 
he  seemed  to  have  had  no  difficulty  and  who  was  in  need  of  aid 
from  him,  is  a  strong  circumstance  tending  to  show  mental  inca- 
pacity or  undue  influence.9  And  evidence  that  a  testatrix  gave 
her  only  relative  $5,  leaving  the  balance  of  her  estate  to  an  ac- 
quaintance, giving  a  reason  therefor  which  had  no  existence  in 
fact,  is  sufficient  to  require  the  reversal  of  a  decree  admitting  her 
will  to  probate  and  a  submission  of  the  question  of  capacity  to  a 

1  Munday  v.  Taylor,  7  Bush,  491. 

s  Deas  v.  Wandell,  3  Tbomp.  &  C.  128. 

3  Re  Wintermute's  Will,  27  N.  J.  Eq.  447. 

*  Re  Snelling's  Will,  136  N.  Y.  515;  Re  Finn's  Will,  1  Misc.  283. 

5  Potts  v.  House,  6  Ga.  324,  50  Am.  Dec.  329. 

6  Cramer  v.  Crumbaugh,  3  Md.  491;  Colhoun  v.  Jones,  2  Redf.  34. 
'  Goble  v.  Grant,  3  N.  J.  Eq.  629. 

8  Thomas  v.  Carter,  170  Pa.  272. 

*  Reynolds  v.  Root,  62  Barb.  250. 


336  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

jury.1  Nor  will  a  verdict  against  a  will  made  by  a  person  in  ex- 
tremis, giving  his  property  to  a  religious  institution  in  the  hospi- 
tal in  which  he  died,  drawn  by  the  chaplain  of  the  hospital,  be 
set  aside  as  against  evidence  where  it  ignores  an  actual  heir  and 
misdescribes  the  testator's  nearest  relatives  and  other  evidence 
from  which  want  of  testamentary  capacity  and  the  existence  of 
undue  influence  might  be  fairly  inferred.2  And  a  will  leaving  all 
the  testator's  property  to  charities  except  a  sum  to  his  executor 
large  enough  to  be  over  and  above  any  bribe  by  his  relatives  is 
unnatural  and  unreasonable  upon  its  face,  and  not  entitled  to  pro- 
bate, though  the  subscribing  witnesses  testify  to  his  sanity.3  And 
the  opinion  of  a  medical  attendant  of  an  aged  woman  who  had 
labored  under  delusions  that  she  had  recovered  and  the  fact  that 
her  will  contained  a  probable  disposition  and  was  made  under  in- 
struction which  did  not  favor  incapacity,  is  not  sufficient  to  over- 
come a  presumption  of  insanity  arising  from  the  previous  existence 
of  a  delusion.'  Evidence  of  family  differences  and  likes  and 
dislikes,  however,  is  not  to  be  considered,  except  as  they  bear 
upon  the  testator's  mental  capacity  at  the  time  of  the  execution 
of  the  will.1 

§31.   Conformity  to  previous  intentions. 

The  fact  that  a  testamentary  disposition  accords  with  previously 
formed  intentions  formed  when  the  testator  was  unquestionably 
sane  is  an  important  one  to  be  considered  in  determining  the 
validity  of  his  will  as  tending  to  support  it.6  A  will  which  pur- 
ports to  give  effect  only  to  probable  intentions  may  be  established 
by  comparatively  slight  evidence  of  testamentary  capacity,  but 
very  much  more  evidence  is  necessary  to  support  an  act  purport- 
ing to  contain  dispositions  contrary  to  the  testators  probable  in- 

1  Ee  Weil..  16  X.  T.  S.  E.  1. 

8  Miller  v.  St.  Louis  Hospital  Asso.  73  Mo.  242. 

3  Ee  Lockwood's  Will,  2  Connoly,  118. 

4  Johnson  v.  Blane,  6  Xotes  of  Cas.  442. 

5  Ee  Lang's  Estate,  65  Cal.  19. 

6  Conway  v.  Yizzard,  122  Ind.  266;  Campbell  v.  Carnahan  (Ark.)  13  S.W. 
1098;  Ee  Weir's  Will,  9  Dana,  434;  Ee  Berrien,  34  N.  X.  S.  E.  332;  Exum 
v.  Canty,  34  Miss.  533;  Ee  Mahoney,  34  X.  X.  S.  E.  183;  Goodacre  v.  Smith, 
15  Week.  Sep.  561;  Coghlan  v.  Cognlan,  cited  in  1  Fhillim.  120;  Ee  Blakely's 
Will,  48  Wis.  294;  Frazer  v.  Frazer,  2  Del.  Ch.  260. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  337 

tentions  or  savoring  in  any  degree  of  folly  or  frenzy.1  And  mere 
proof  of  a  general  understanding  of  a  testator  that  he  is  the  owner 
of  property  and  has  power  to  dispose  of  it  by  will,  and  of  previ- 
ous declarations  of  intent,  and  of  gratitude  and  attachment  to  the 
donee,  is  sufficient  to  justify  a  finding  that  the  will  is  valid,  where 
the  will  itself  is  simple  in  form.2  So,  declarations  of  a  testator 
of  his  intended  disposition,  corresponding  with  the  provisions  of 
his  will,  are  strong  evidence  in  support  of  it,3  especially  when 
taken  in  connection  with  testimony  as  to  his  sanity  at  the  time  of 
its  publication.4  But  declarations  showing  a  dislike  for  the  bene- 
ficiary and  an  intention  to  give  the  estate  to  another  do  not  show 
testamentary  incapacity  where  sufficient  time  had  elapsed  between 
the  declarations  and  the  change  in  the  will  to  permit  a  change 
of  sentiment,  and  acts  had  been  done  which  would  have  naturally 
tended  to  cause  the  change/  And  an  expression  made  many 
years  before,  of  an  intent  to  divide  property  equally  between 
children,  does  not  tend  to  show  incapacity  where  a  different  dis- 
position is  made.6  So,  a  will  which,  with  a  slight  exception,  con- 
firms and  ratifies  a  former  will  will  not  be  set  aside  on  the  ground 
of  testamentary  incapacity  where  much  of  the  testimony  related 
to  incidents  after  the  will  was  made,  and  there  was  no  testimony 
tending  to  show  prior  unsoundness  of  mind.7  And  a  will  in  ac 
cordance  with  previous  affections  and  intentions  will  not  be  dis- 
turbed on  evidence  consisting  of  letters  of  the  testator,  evidencing 
a,  failing  -  intellect ; 8  or  proof  that  he  was  in  extremis  at  a  time 
when  there  was  evidence  of  volition  and  capacity ; 9  or  by  fail- 
ure of  memory  and  childishness,  and  peculiar  delusions,  where  he 
appears  to  have  known  what  he  was  about  at  the  time ; I0  or  by 
evidence  that  he  was  excitable  and  sickly,  and  flew  into  fits  of 

1  Evans  v.  Knight,  1  Add.  Eccl.  Eep.  229. 

2  Stewart  v.  Lispenard,  26  Wend.  255. 

3  Starrett  v.  Douglass,  2  Yeates,  46;  Pancoast  v.  Graham,  15  17.  J.  Eq. 
294. 

4  Starrett  v.  Douglass,  2  Yeates,  46. 

6  Ke  Shotwell's  Estate,  1  Pa.  Dist.  E.  257. 

6  Eutherford  v.  Morris,  77  HI.  397. 

7  Ke  Dunham,  15  N.  Y.  S.  K.  869. 

6  Re  Comstock,  26  N.  Y.  S.  E.  292. 
9  Eoss  v.  Chester,  1  Hagg.  Eccl.  Eep.  227. 
10  Moore  v.  Moore,  2  Bradf.  265. 
22 


338  ilEDICAL    JURISPRUDENCE    OF   INSA^TY. 

passion  on  slight  provocation,  and  displayed  many  symptoms  of 
a  diseased  mind.1  j^or  will  evidence  that  a  testator  was  old,  in- 
temperate, and  irascible  establish  testamentary  incapacity  as 
against  evidence  of  rationality  and  business  capacity,  and  that  he 
contemplated  the  execution  of  the  will  for  some  time,  and  made 
inquiries  as  to  the  names  of  some  of  the  persons  mentioned  in  it.* 
So,  while  mere  proof  of  the  intention  of  a  testator  to  make  a  dif- 
ferent will  from  the  one  in  question  will  not  defeat  it  where  he 
was  of  sound  mind,  if  a  testator  dispose  of  all  his  property  to  a 
stranger,  proof  of  affection  on  his  part  for  his  relatives  tends  to 
increase  the  probability  that  the  will  was  not  the  result  of  his  de- 
liberate judgment.3  A  will  making  a  disposition  which  is  a  total 
departure  from  former  testamentary  intentions  long  adhered  to, 
however,  is  to  be  closely  scrutinized,4  especially  where  the  capacity 
of  the  testator  is  doubtful  at  the  time,6  or  where  the  will  is  re- 
ciprocal in  its  nature,  made  in  conjunction  with  that  of  a  brother,6 
and  particularly  if  the  person  in  whose  favor  the  change  is  made 
possesses  great  influence  and  authority  and  originates  and  conducts 
the  whole  transaction.7  And  wills  of  a  prior  date  to  that  offered 
for  probate  making  a  different  disposition  of  the  testator's  prop- 
erty are  entitled  to  considerable  weight  in  determining  the  ques- 
tion of  capacity  and  undue  influence ; 8  and  such  a  change  of  dis- 
position without  proof  of  a  corresponding  change  of  feeling  upon 
the  part  of  a  testator  is  sufficient  to  invalidate  his  will.9  The 
weight  as  evidence  of  testamentary  capacity  of  conformability  of 
previous  intentions  depends  upon  whether  or  not  the  testator  was 
capable  of  conversing  on  the  subject  at  the  time  the  will  was  made.10 

1  Ee  Macpherson,  1  Connoly,  223.     And  see  Ke  Blakely's  Will,  48  Wis. 
294. 

-  Keating's  Appeal,  19  Pitts.  L.  J.  K  S.  283. 

3  Norris  v.  Sheppard,  20  Pa,  475. 

4  Marsh  v.  Tyrrell,  2  Hagg.  Eccl.  Rep.  84;  Kinleside  v.  Harrison,  2  Pkil- 
lim.  EccL  Eep.  449. 

5  Marsh  v.  Tyrrell,  2  Hagg.  EccL  Eep.  84. 

6  Kinleside  v.  Harrison,  2  Phillim.  Eccl.  Eep.  449. 

'  Marsh  v.  Tyrrell,  2  Hagg.  EccL  Eep.  84;  Dodge  v.  Meech,  1  Hagg. 
Eccl.  Rep.  612. 

8  Home  v.  Home,  9  Lred.  L.  99. 

9  Esterbrook  v.  Gardner,  2  Dem.  543;  King  v.  Earley,  1  Hagg.  Eccl.  Rep. 
602. 

10  Bootle  v.  Blundell,  19  Yes.  Jr.  494. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  339 

And  an  inference  in  favor  of  a  will,  drawn  from  the  fact  that  its 
provisions  are  like  those  of  a  former  will  executed  when  the  tes- 
tator was  sane,  is  sufficiently  rebutted  by  the  fact  that  it  bears  a 
still  closer  resemblance  to  another  will  made  when  he  was  clearly 
insane.1  So,  evidence  that  a  testator  was  subject  to  sick  spells, 
during  which  his  mind  wandered,  and  that  his  hearing  and  eye- 
sight were  impaired  and  his  memory  very  poor,  and  that  his  will 
was  not  in  accordance  with  previously  expressed  intentions,  war- 
rants a  finding  of  testamentary  incapacity  in  the  absence  of  evi- 
dence that  he  knew  the  contents.2  And  the  will  of  one  who  is 
easily  influenced  and  made  to  believe  things  incredible  and  im- 
possible, and  whose  purpose  frequently  changes  with  changes  of 
scenes,  associations,  or  company,  is  not  competent  to  make  a  will 
though  competent  to  converse  rationally  on  subjects  familiar  to 
him.3  Nor  should  a  will  be  admitted  to  probate  where  a  change 
had  been  made  in  it  when  the  enfeebled  condition  of  the  testator 
rendered  him  incapable  of  dictating  it  by  the  only  means  at  his 
command.4  And  a  holding  that  a  testator  was  incompetent  to 
make  a  will  was  justified  by  evidence  that,  after  deciding  while 
sane  not  to  make  a  will,  he  ultimately  signed  one  directed  by 
others,  and  brought  to  him  after  his  mind  had  greatly  weakened, 
though  there  was  some  evidence  tending  to  show  that  he  was  pos- 
sessed of  a  disposing  mind  ; 6  nor  does  an  act  derive  strength  from 
a  fixed  purpose  to  do  it,  where  it  is  not  shown  to  be  a  reasonable 
act.6 

The  question  of  the  competency  of  a  testator  to  change  a  will 
involves  the  inquiry  whether  he  was  of  sufficient  mental  sound- 
ness to  change  any  previously  existing  purpose  he  might  have 
formed ; 7  and  the  mere  fact  that  a  will  is  not  in  the  direction  of 
a  preconceived  purpose  is  of  no  weight  unless  a  testator  was  of 
unsound   mind.8     And   mere   proof   of   a  change  by  a  testator 

1  Carrico  v.  Neal,  1  Dana,  163. 

2  Ee  Liddington's  Will,  20  N.  T.  S.  E.  610. 

3  Shropshire  v.  Eeno,  5  J.  J.  Marsh.  91;  Ee  Farnsworth's  Will,  62  Wis. 
474. 

4  EoHwagen  v.  Eollwagen,  5  Thomp.  &  C.  402. 
6  Alston  v.  Jones,  17  Barb.  276. 

6  Frazer  v.  Frazer,  2  Del.  Ch.  260. 
i  Ee  Hoover,  8  Mackey,  495. 
8  Ee  Hoover,  8  Mackey,  495. 


340  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

of  his  will  is  not  sufficient  to  show  that  he  was  insane,1  though 
supported  by  evidence  of  forgetfulness  and  unreasonable  fear  of 
personal  violence;2  nor  is  it  sufficient  to  invalidate  a  will  where 
a  change  of  feeling  toward  the  former  beneficiary  appears,3  or 
where  the  variation  is  accounted  for  by  a  change  of  circum- 
stances.4 And  an  unequal  will,  reciting  that  advancements  equal 
to  the  difference  had  been  made  since  the  former  will  distributing 
the  property  equally,  will  not  raise  an  inference  that  the  testator's 
faculties  had  failed,  in  the  absence  of  evidence  that  no  such  ad- 
vancements had  been  made.5  And  an  instruction  that  a  declara- 
tion of  an  intention  to  make  a  different  will  is  a  circumstance 
entitled  to  consideration  on  the  question  of  competency  and  un- 
due influence  without  qualification  is  erroneous,  as  authorizing  a 
controlling  effect  to  be  given  to  a  single  item  of  evidence  without 
regard  to  others.6 

§  32.  Subsequent  recognition. 
The  subsequent  apparent  recognition  by  a  testator  in  his  con- 
versations or  actions  of  his  will  is  strong  evidence  of  consciousness 
and  mental  capacity,  and  that  he  was  not  imposed  upon  at  the 
time  it  was  made.'  And  keeping  a  will  uncanceled  gives  rise  to  a 
presumption  that  it  was  not  procured  against  the  testator's  will  and 
intelligent  consent,  whether  fraud,  undue  influence,  or  mental 
incapacity  is  set  up.8  So,  a  will  will  be  held  to  be  valid  where  a 
subsequent  codicil  thereto  was  executed,  if  the  jury  are  satisfied 
of  the  testator's  capacity  at  the  time  of  the  execution  of  the 
codicil,  without  reference  to  his  condition  at  the  time  the  original 
will  was  made.9  But  where  a  person  placing  a  holographic  will 
among  his  valuable  papers  was  insane  so  that  his  act  could  have  no 
effect,  it  would  require  clear  proof  of  retaining  it  in  such  reposi- 
tory in  a  lucid  interval  to  give  it  effect  as  a  valid  disposition  of 

1  Vance  v.  Upson,  66  Tex.  476;  Newton  v.  Carbery,  5  Cranch,  C.  C.  626. 

2  Potter  v.  McAlpine,  3  Dem.  108. 

3  Ee  McDonald's  Estate,  130  Pa.  480. 

4  Williams  v.  Goude,  1  Hagg.  Eccl.  Eep.  577. 
6  Eankin  v.  Eankin,  61  Mo.  295. 

6  Quisenberry  v.  Quisenberry,  14  B.  Mon.  481. 
1  Jones  v.  Harris,  3  Bich.  L.  14. 

8  Pierce  v.  Pierce,  38  Mich.  412. 

9  Brown  v.  Biggin,  94  El.  560. 


LEGAL    ADJUDICATIONS    IN   CIVIL   CASES.  341 

his  property,  and  the  mere  retention  of  the  paper  during  the 
time  when  he  was  of  a  sound  and  disposing  mind  and  memory  is 
not  conclusive  that  he  intended  it  to  be  his  will.1 

§  33.  Capacity  to  transact  business. 
A  person  of  common  sense  must  be  deemed  to  have  testa- 
mentary capacity.2  Capacity  to  make  money  and  take  care  of 
property,  though  not  conclusive,  is  evidence  of  sanity.3  And 
substantial  business  acts  of  a  testator  are  of  more  weight  on  the 
question  of  his  mental  capacity  than  mere  conversations  or  occa- 
sional doings  not  connected  with  business.4  That  a  testator  was 
capable  of  transacting  business,  and  was  shrewd  and  firm  in  his 
bargains,  is  sufficient  to  establish  his  testamentary  capacity.5 
And  evidence  of  the  proper  conduct  of  the  ordinary  concerns  of 
life  as  a  sane  man  is  sufficient  as  against  proof  that  the  will  sounds 
of  folly,8  or  as  against  proof  that  the  testator  was  eccentric,  ex- 
citable, passionate,  and  very  nervous,  and  believed  in  spiritualism, 
Mormonism,  or  Fourierism,  having  visions  and  believing  in  them, 
and  talking  like  a  fool ; 7  or  as  against  proof  of  eccentricity,  or  fits 
of  melancholy,8  or  weakness  of  mind,9  and  occasional  fits  of  epi- 
lepsy ; 10  or  as  against  evidence  of  eccentricity  and  delusion  and 
derangement  at  different  periods  where  it  appears  that  the  de- 
rangement was  not  continuous;  "  or  against  proof  of  old  age  and 
a  disturbed  and  excited  state  of  mind,12  and  failing  memory ;  '3 
or  against  evidence  that  the  testator's  mind  wandered,  and  that 
he  was  incoherent  in  speech,  where  his  will  was  reasonable  ; 14  or 

1  Porter  v.  Campbell,  2  Baxt.  81. 

2  Ee  Howard's  Will,  5  T.  B.  Mon.  199,  17  Am.  Dec.  60. 

3  Gass  v.  Gass,  3  Humph.  278. 

4  Turner  v.  Hand,  3  Wall.  Jr.  120. 

5  Ke  Gleespin's  Will,  26  N.  J.  Eq.  523;  Chandler  v.  Barrett,  21  La.  Ann. 
58;  Prentis  v.  Bates,  88  Mich.  567. 

6  Arbery  v.  Ashe,  1  Hagg.  Eccl.  Bep.  214. 

7  Turner  v.  Hand,  3  Wall.  Jr.  88. 

8  Brick  v.  Brick,  66  N.  Y.  144. 

9  White  v.  Farley,  81  Ala.  563;  Tomkins  v.  Tomkins,  1  Bail.  L.  92,  19 
Am.  Dec.  656. 

10  Brown  v.  Torrey,  24  Barb.  583. 

11  White  v.  Driver,  1  Phillim.  84. 

15  Gardiner  v.  Gardiner,  34  N.  Y.  155. 

13  Be  Cline's  Will,  24  Or.  175;  Be  Stewart,  39  N.  Y.  S.  E.  801. 

14  Ee  Buckley,  16  N.  Y.  S.  E.  983. 


342  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

as  against  proof  that  he  was  unbalanced  and  unsettled,  and  almost 
if  not  quite  a  monomaniac  with  reference  to  a  particular  subject, 
where  he  appeared  to  comprehend  the  character  of  the  business 
in  which  he  was  engaged.1  And  the  fact  that  the  testator  had 
sufficient  capacity  to  acquire  a  fortune  will  prevail  as  against  the 
opinions  of  a  cloud  of  ignorant  witnesses  that  he  did  not  have 
testamentary  capacity.2 

So,  the  fact  that  a  testator  continued  to  do  business  with 
shrewdness  and  sagacity  is  sufficient  to  sustain  his  will  as  against 
evidence  of  increasing  infirmities  of  age  and  failure  to  recognize 
persons  and  places,  and  frequent  declarations  on  his  part  that  he 
was  not  fit  to  do  business  ;3  or  as  against  evidence  of  age  and 
impaired  eyesight  and  attacks  of  vertigo  attended  with  brief 
unconsciousness  and  loss  of  memory  and  physical  exhaustion,  and 
the  fact  that  the  testator  had  surrendered  most  of  his  business 
into  other  hands,  where  it  appears  that  he  still  transacted  business 
and  was  able  to  understand  what  he  was  doin°;  ;*  or  as  against 
evidence  of  a  stroke  of  an  apoplectic  nature  affecting  the  testa- 
tor's vocal  organs,  and  a  form  of  progressive  paralysis  and  a 
gradual  weakening  of  the  physical  and  mental  powers,  incident  to 
old  age  f  or  as  against  evidence  of  a  failure  to  make  provisions 
in  the  will  for  a  person  having  a  natural  claim  upon  the  testator's 
bounty  where  reasons  are  given  for  such  omission.8 

Neither  is  proof  of  ability  to  transact  business  overcome  by 
evidence  drawn  from  an  autopsy,  that  the  testator  had  tumors  in 
the  brain,  which  could  not  exist  without  serious  mental  weakness.7 
And  clear,  sensible,  and  coherent  letters  written  to  relatives 
about  business  matters  shortly  before  the  execution  of  the  will 
are  entitled  to  great  weight  upon  the  question  of  capacity  where 
it  is  claimed  that  the  testator  was  afflicted  with  chronic  dementia 
which  is  of  slow  progress  marked  in  its  regular  stages  by  general 
impairment  of  the  mental  faculties  ending  in  idiocy.8     !Nor  will 

1  Ean  t.  Snyder,  46  Barb.  230. 

s  Eddey's  Appeal,  109  Pa.  406.     And  see  Comb's  Appeal,  105  Pa.  155. 

3  Ee  Bartkolick,  1  Connoly,  373. 

4  Ee  Soule,  1  Connoly,  18. 

5  Ee  Birdsall,  2  Connoly,  433. 

6  Ee  Ogden,  2  K  T.  Supp.  345;  Be  Gray,  1  Silv.  338. 
1  Ee  Ericke,  47  N.  Y.  S.  E.  10. 

8  Be  Blakely's  Will,  48  Wis.  238. 


LEGAL   ADJUDICATIONS    IN    CIVIL    CASES.  843 

a  will  be  set  aside  for  mental  incapacity  where  there  is  a  conflict 
of  evidence  as  to  the  testator's  condition,  and  it  appears  that  he 
continued  to  manage  his  business  intelligently,  and  gave  instruc- 
tions for  its  execution.1  But  the  general  proposition  that  affirma- 
tive testimony  should  outweigh  negative  testimony  does  not 
apply  in  a  will  contest  on  the  ground  of  mental  incapacity  where 
some  of  the  witnesses  swear  that  the  testator  could  do  business 
acts,  and  others  testify  that  he  could  not.2  And  entries  made  by 
a  testator  in  his  books  are  not  conclusive  of  sanity,  the  weight  to 
whicli  they  are  entitled  being  a  question  for  the  jury.3  And  mere 
proof  of  the  transaction  of  ordinary  business  by  the  testator  in 
connection  with  his  will  tends  to  rebut  a  presumption  arising 
from  proof  of  a  previously  existing  delusion,  the  question 
whether  it  is  sufficient  being  also  solely  for  the  jury.4  So,  evi- 
dence of  great  derangement  causing  aimless  and  foolish  actions 
and  forgetfulness  of  friends  and  relatives  may  be  such  as  to  in- 
validate a  will,  though  there  was  evidence  of  ability  to  conduct 
private  business  matters/  And  where  the  weight  of  evidence 
shows  incapacity  to  transact  ordinary  business,  testamentary  inca- 
pacity is  sufficiently  established."  And  proof  of  business  capacity 
in  ordinary  transactions  will  not  sustain  a  will  as  against  evidence 
of  the  existence  of  insane  delusions  with  reference  to  the  subject- 
matter  and  the  object  of  the  disposition,7  though  it  would  tend 
to  rebut  a  presumption  raised  by  proof  that  a  delusion  existed  a 
short  time  before,  its  sufficiency  for  that  purpose  being  solely  a 
question  for  the  jury.8 

§  34.  Acts  and  conduct. 
A   perfect   capacity   is   usually   tested   by  the  question  as  to 
whether  the  individual  talks  and  discourses  rationally  and  sensi- 
bly and  is  fully  capable  of  any  rational  act  requiring  thought, 

1  Coit  v.  Patchen,  77  N.  Y.  533. 

2  Potts  v.  House,  6  Ga.  324,  50  Am.  Deo.  329. 

3  Irish  v.  Smith,  8  Serg.  &  R.  573,  11  Am.  Dec.  648. 

4  Wood  v.  Sawyer,  Phill.  L.  251. 

5  Bever  v.  Spangler,  93  Iowa,  576;  Yglesias  v.  Dyke,  Perrog.  Ct.  (1852) 
cited  in  2  Taylor  Prim  Med.  Jur.  556. 

6  Minor  v.  Thomas,  12  B.  Mon.  106;  Townsend  v.  Bogart,  5  Redf.  93. 

1  Morse  v.  Scott,  4  Dem.  507;  Be  Shaw,  2  Redf.  107;  Smee  v.  Smee,  L. 
R.  5  Prob.  Div.  84;  Banks  v.  Goodfellow,  22  L.  T.  N.  S.  820. 
8  Wood  v.  Sawyer,  Phill.  L.  251. 


344  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

judgment,  and  reflection.1  And  an  inference  of  testamentary 
incapacity  may  be  legitimately  based  upon  the  fact  that  the  acts 
and  language  of  the  party  are  those  of  an  insane  person,2  though 
the  declarations  of  an  insane  person  do  not  tend  to  establish  his 
insanity,3  and  in  judging  of  the  unsoundness  of  the  testator  he  is 
to  be  compared  with  himself,  and  not  with  others.4  But  evidence 
of  occasions  when  the  conversations  and  conduct  of  the  testator 
were  inconsistent  with  what  might  be  expected  of  a  man  of 
sound  intellect  is  not  alone  sufficient  to  invalidate  his  will,6  nor  is 
evidence  of  acts  of  folly  occasionally  occurring,  where  the  pro- 
visions of  the  will  were  wise  and  judicious.6  And  evidence  of 
the  conduct  of  an  aged  testator  a  long  time  after  making  his  will, 
while  he  was  gradually  sinking,  is  entitled  to  but  little  weight.7 
Neither  do  slowness,  feebleness,  and  eccentricity  show  insanity,8 
nor  do  eccentricity  and  nervousness  ;9  nor  do  oddities  and  appar- 
ent weakness  of  mind,  when  they  are  attributable  to  the  physical 
condition  of  and  medicines  taken  by  the  testator ;'°  nor  arbitrary 
and  capricious  likes  and  dislikes.11  Nor  do  eccentric  and  improper 
actions  upon  the  part  of  a  clergyman  indicate  it  ;12  nor  eccentricity 
combined  with  disbelief  in  specific  religious  doctrines,13  or  with 
profanity  and  filthy  habits.14  Nor  is  a  will  invalidated  by  eccen- 
tricity, combined  with  the  fact  that  the  testator  gave  his  property 
to  the  general  government,  and  that  he  had  childish  tastes,  and 
had  a  habit  of  making  wills  and  changing  them.16     And  the  fact. 

1  Duffield  v.  Robeson,  2  Harr.  (Del.)  375.     And  see  Brock  v.  Luckett,  4 
How.  (Miss.)  459. 

2  Kingsley  v.  Blanchard,  66  Barb.  317. 

3  Re  Lang's  Estate,  65  Cal.  19. 

4  Aikin  v.  Weckerly,  19  Mich.  482. 

5  Boylan  v.  Meeker,  15  N.  J.  Eq.  310. 

6  Chandler  v.  Barrett,  21  La.  Ann.  58. 

7  Kinne  v.  Kinne,  9  Conn.  102,  21  Am.  Dec.  732. 

8  Banks  v.  Goodfellow,  22  L.  T.  N.  S.  820. 

9  Mercer  v.  Kelso,  4  Gratt.  106;  Rush  v.  Megee,  36  Ind.   69;  Ekin  v. 
McCracken,  11  Phila.  534. 

10  Frost  v.  Wheeler,  43  N.  J.  Eq.  573. 

11  Re  Spencer's  Estate,  96  Cal.  448;  Rush  v.  Megee,  36  Ind.  69. 

12  Fulleck  v.  Allinson,  3  Hagg.  Eccl.  Rep.  527. 

13  Hartwell  v.  McMaster,  4  Redf .  393. 

14  Bennett  v.  Hibbert,  88  Iowa,  154. 

15  Re  Merriam,  42  N.  Y.  S.  R.  619. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  345 

that  a  testator  was  erratic  and  changeable  and  excitable  has  no 
tendency  to  prove  testamentary  incapacity,1  though  eccentricities 
and  belief  in  absurdities  furnish  evidence  of  insanity." 

So,  the  fact  that  a  testator  was  sixty-eight  years  old  when  he 
married  and  his  wife  about  eighteen  is  not  proof  per  se  of  in- 
sanity or  imbecility ; 3  nor  is  the  fact  that  he  was  a  white  man 
and  wished  to  marry  a  negro  woman,  or  maintain  unlawful  rela- 
tions with  her ; 4  nor  is  the  fact  that  a  testatrix  was  extremely 
penurious  and  miserly,  and  denied  the  necessities  of  life  to  herself 
and  servants.6  Nor  is  it  established  by  frequent  gifts,  though 
unwise,  where  it  appears  that  the  larger  ones  were  made  to  per- 
sons toward  whom  the  testator  felt  gratitude  and  affection  and 
regard.6  And  a  determination  by  a  father,  whose  daughter  had 
married  against  his  will,  to  make  a  deed  instead  of  a  will,  giving 
his  property  to  others,  thus  cutting  down  behind  him  the  means 
of  redress  after  his  fury  had  passed,  is  not  of  itself  evidence  of 
unsoundness  of  mind.7  Nor  is  incapacity  established  by  the  fact 
that  the  testator  deemed  his  physician  derelict  in  not  informing 
him  of  the  serious  nature  of  his  malady,  and  entertained  the 
opinion  that  out-door  air  would  be  good  for  him,  and  muttered 
to  himself  when  alone.*  And  where  a  testator  knew  what  he 
was  doing  when  he  executed  his  will,  loose  declarations  after- 
wards made  should  not  be  allowed  to  affect  its  validity.9  Though 
acts  and  declarations  showing  that  the  testator  was  affectionate 
towards  his  relatives  may  tend  to  defeat  a  will  giving  the  testa- 
tor's property  to  a  stranger,  where  there  was  proof  of  intention, 
as  it  would  increase  the  probability  that  the  will  was  the  result 
of  deliberate  judgment.10  So,  evidence  of  profanity,  irreverence, 
and  disbelief  in  the  existence  of  God,  and  filthy  habits,  does  not. 
show  a  mind  wanting  in  testamentary  capacity.11 

1  Prentis  v.  Bates,  88  Mich.  567. 

2  Leech  v.  Leech,  5  Pa.  L.  J.  86;  Dew  v.  Clark,  3  Add.  Eccl.  Eep.  79. 

3  Thompson  v.  Stump,  62  Mo.  275. 

4  Patton  v.  Patton,  5  J.  J.  Marsh.  389. 

b  Newton  v.  Carbery,  5  Cranch,  C.  C.  626. 
6  Miller  v.  Oestrich,  157  Pa.  270. 

I  Lemon  v.  Jenkins,  48  Ga.  313,  dictum. 

8  Spratt  v.  Spratt,  76  Mich.  384. 

9  Irvin  v.  Deschampo,  11  W.  N.  C.  365. 
10  Norris  v.  Sheppard,  20  Pa.  475. 

II  Bennett  v.  Hibbert,  88  Iowa,  154. 


-346  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

The  fact  that  an  aged  testator  failed  to  provide  for  his  wife, 
however,  and  entertained  visionary  and  unreasonable  fears  of 
damage  and  injury,  and  was  disturbed  and  prostrated  and  talked 
and  behaved  strangely,  furnishes  evidence  of  want  of  capacity  to 
execute  a  will.1  And  proof  of  a  habit  of  writing  illegibly  and 
unintelligibly,  calling  the  writings  letters,  and  insisting  upon 
having  them  sent  to  friends  and  acquaintances,  furnishes  positive 
"proof  of  extreme  imbecility  if  not  idiocy.2  So,  in  determining 
the  mental  condition  of  a  testator,  the  conduct  of  the  parties  sur- 
rounding him  is  of  as  much  influence  as  the  opinions  of  witnesses 
given  upon  the  trial.3  But  power  to  make  a  testamentary  dis- 
position under  certain  restrictions  given  by  a  father  in  his  will 
to  a  semi-imbecile  son,  of  the  property  given  him  by  the  will, 
furnishes  no  evidence  of  the  testamentary  capacity  of  the  son.4 
And  an  agreement  signed  by  the  relatives  of  a  testator  several 
years  before  the  will  is  made  with  reference  to  the  care  of  his 
property,  reciting  his  great  age  and  incapacity  to  manage  his 
property,  is  to  be  regarded  as  a  mere  expression  of  opinion  at  the 
time  and  not  to  be  considered  as  evidence  of  mental  incapacity 
with  reference  to  the  will.6 

§  35.  Suicide. 
The  suicide  of  a  testator  is  evidence  tending  to  show  want  of 
testamentary  capacity.6  But  it  is  not  conclusive  ; T  and  does  not 
even  raise  a  presumption  of  insanity  at  the  time  of  the  execution 
of  the  will ; e  and  is  only  to  be  considered  as  a  circumstance  in 
connection  with  others."  Suicide,  together  with  all  other  facts 
in  the  case,  should  go  to  the  jury  for  consideration  in  determin- 

1  Hoskins  v.  Hoskins  (Ky.)  7  S.  W.  546. 

2  Williams  v.  Lee,  47  Md.  321. 

3  Stebbins  v.  Hart,  4  Dem.  501. 

4  Ee  Alexander's  Will,  27  N.  J.  Eq.  463. 

5  Dale's  Appeal,  57  Conn.  127. 

6  Pettitt  v.  Pettitt,  4  Humph.  191;  Ee  Card's  Will,  28  N.  T.  S.  E.  528, 
55  Hun,  607,  mem;  Duffield  v.  Morris,  2  Harr.  (Del.)  375. 

1  Brooks  v.  Barrett,  7  Pick.  94;  Pettitt  v.  Pettitt,  4  Humph.  191;  McErwee 
v.  Ferguson,  43  Md.  479. 

8  Bey's  Succession,  46  La.  Ann.  773,  24  L.  E.  A.  577;  Ee  Card's  Will,  28 
N.  Y.  S.  E.  528,  55  Hun.  607,  mem;  Duffield  v.  Morris,  2  Harr.  (Del.)  375; 
Hoby  v.  Hoby,  1  Hagg.  Eccl.  Eep.  146. 

9  Ee  Card's  Will,  28  N.  Y.  S.  E.  528,  55  Hun.  607,  mem 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  347 

ing  the  question  of  testamentary  capacity,  not  as  of  the  time  of 
the  commission  of  the  suicide,  but  as  of  the  time  of  the  execution 
of  the  will.1  A  subsequent  suicide  will  not  affect  the  right  of  a 
will  to  probate  where  it  was  duly  and  properly  executed ; a  or 
where  it  was  reasonable  and  such  as  a  man  in  his  senses  might  be 
supposed  to  make ; 3  or  where  instructions  containing  the  fixed 
and  final  intentions  of  the  testator  h'ad  been  given,  and  there  was 
no  evidence  of  insanity  at  the  time  of  giving  them,  even  though 
formal  execution  thereof  was  prevented  by  the  suicide.4  And  the 
fact  that  a  testator  labored  under  an  insane  delusion  on  the  three 
days  preceding  the  execution  of  his  will,  and  committed  suicide 
on  the  day  following  its  execution,  while  temporarily  insane,  is  not 
sufficient  to  invalidate  it  where  it  was  drawn  entirely  in  his  own 
writing  and  purported  to  have  been  signed  by  him  in  the  pres- 
ence of  witnesses,  and  it  was  in  itself  a  rational  act  rationally 
done.6 

§  36.  Change  of  character  or  disposition. 
A  marked  change  in  a  man's  habits  and  thoughts  is  strong  evi- 
dence of  his  mental  unsoundness,  and  the  absence  of  such  change 
is  evidence  to  the  contrary ;"  and  insanity  is  indicated  by  proof 
of  acts,  declarations,  and  conduct  inconsistent  with  the  character 
and  previous  habits  of  the  party.7  Thus,  the  fact  that  one  who 
had  always  been  of  a  gentlemanly  disposition  became  suddenly 
irritable,  morose,  and  profane  without  provocation  or  cause  tends 
to  show  mental  derangement,8  and  evidence  that  a  person  who 
had  been  pleasant  and  amiable  suddenly  became  irritable,  morose, 
and  slatternly  in  his  habits  and  eccentric  in  conduct,  and  seemed 
to  nourish  a  bitter  feeling  against  his  relatives  without  cause,  and 
that  he  ran  away  and  was  subsequently  found  in  an  asylum,  jus- 
tifies a  finding  of  insufficient  testamentary  capacity.9     So,  proof 

1  McElwee  v.  Ferguson,  43  Md.  479. 
s  Ee  Bailey,  7  Jur.  K  S.  712. 

3  Levy  v.  Lindo,  3  Meriv.  85. 

4  Burrows  v.  Burrows,  1  Hagg.  Eccl.  Kep.  109. 

6  Chambers  v.  Queen's  Proctor,  2  Curt.  Eccl.  Rep.  415. 
6  Be  Carpenter,  79  Cal.  382. 

1  McCurry  v.  Hooper,  12  Ala.  823,  46  Am.  Dec.  280;  Groom  v.  Thomas, 
2  Hagg.  Eccl.  Bep.  433. 

8  Conely  v.  McDonald,  40  Mich.  150. 

9  Pelamourges  v.  Clark,  9  Iowa,  1. 


348  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

of  a  suddenly  acquired  idea  upon  the  part  of  a  husband,  whose 
relations  with  his  wife  and  family  had  always  been  pleasant,  that 
they  were  persecuting  him  and  trying  to  get  his  property  from 
him,  and  had  attempted  to  poison  him  and  put  him  in  an  insane 
asylum,  and  that  he  subsequently  killed  his  wife  and  himself, 
sufficiently  establishes  incompetency ;]  and  evidence  that  a  father 
suddenly  conceived  the  idea  that  one  whom  he  had  treated  as  a 
son  for  thirt}7-five  years  was  illegitimate,  telling  his  confidential 
adviser  so,  under  circumstances  fairly  justifying  the  inference 
that  he  made  the  statement  in  explanation   of  his  purpose  to  dis- 
inherit him,  tends  to  show  the  existence  of  an  insane  delusion  at 
the  time.2     A  codicil  to  a  will,  made  while  the  testatrix  was  un- 
questionably sane,  executed  after  signs  of  mental  disturbance  had 
appeared,  including  changes  in  her  personal  habits  and  a  dislike 
for  her  niece,  who  was  the  beneficiary  in  her  will,  the  sole  pur- 
pose of  which  was  to  revoke  the  provision  in  her  favor,  should  be 
refused  probate  as  having  been  directed  by  an  insane  delusion,3 
and  so  should  a  will  containing  liberal  provision  for  charitable 
and  religious  purposes,  but  omitting  without  apparent  cause  to- 
make  provisions  for  certain  near  relatives  who  had  previously 
been  generously  provided  for,  where  the  sentiments  of  the  testa- 
tor had  been  in  opposition  to  religious  organizations.4     Nor  can 
the  court  suggest,  as  matter  of  law,  a  period  of  a  designated 
number  of  days  as  a  possible  limit  within  which  a  radical  change 
of  mental  condition  could  take  place,  where  there  was  abundant 
testimony  as  to  what  the  testator's  actual  condition  was  during 
such  period.5     The  inquiry,  however,  is  not  as  to  whether  there 
was  good  reason  for  the  change,  but  as  to  whether  it  was  caused 
by  an  insane  delusion.6     And  proof  of  a  miserly  disposition,  pro- 
fanity,  unclean   modes   of   life,    dishonesty  even  to  theft,  and 
violence  of  temper,  which  did  not  previously  exist,  do  not  show 
want  of  testamentary  capacity.7     Nor  is  it  shown  by  evidence  that 

1  Ee  Kahn,  24  N.  T.  S.  E.  409. 

2  Haines  v.  Hayden,  95  Mich.  332. 

3  Miller  v.  White,  5  Eedf.  321. 

4  Ee  Frickie,  N.  Y.  Daily  Eeg.  Feb.  6,  1886  (Abb.  Dig.  1886,  p.  377). 
6  Eeichenbach  v.  Euddach,  127  Pa.  564. 

6  Ee  Carpenter's  Estate,  94  Cal.  416. 
1  Ee  Lewis,  33  N.  J.  Eq.  219. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  349 

after  the  death  of  his  wife  the  testator  began  to  pay  more  atten- 
tion to  his  dress  and  tried  to  look  youthful,  and  took  a  decided 
interest  in  the  opposite  sex,  not  comporting  with  his  former  dig- 
nity, and  lost  interest  in  his  business,  and  became  forgetful  and 
subject  to  fits  of  despondency,  and  suddenly  commenced  to 
drink  to  excess.1  So,  the  fact  that  a  testator  was  prompt  and 
particular  in  the  payment  of  his  debts,  and  two  of  his  trustees 
presented  a  large  bill  against  his  estate  for  services  performed, 
has  no  tendency  to  prove  him  insane.2  And  evidence  that  a 
testatrix  became  estranged  from  her  adopted  son  of  whom  she 
had  been  very  fond,  and  refused  to  permit  him  to  be  known  by  her 
name,  and  destroyed  her  will  and  mutilated  his  portrait  as  a  sign 
of  her  displeasure,  and  made  baseless  charges  against  him,  does 
not  establish  testamentary  incapacity.3  So  while  ill  will,  prejudice, 
hatred,  or  the  exhibition  of  violence  by  a  person  usually  pleasant 
and  affable  do  not  of  themselves  constitute  insanity,  they  may  in- 
dicate mental  derangement,  and  evidence  of  their  existence  with 
reference  to  persons  actually  entitled  to  the  testator's  bounty 
which  might  affect  the  disposition  of  his  property  should  be  left 
to  the  jury  to  determine  whether  they  result  from  natural  ungov- 
ernable passion  or  show  the  indication  of  a  decaying  or  decayed 
mind.4 

§  37.  Advanced  age  and  attendant  defects. 
The  advanced  age  of  a  testator  is  not  alone  sufficient  to  prove 
incapacity  to  make  a  will,5  and  raises  no  presumption  against 
capacity.6  And  probate  will  not  be  refused  because  the  testator 
was  very  old  and  the  powers  of  his  mind  somewhat  impaired, 
where  there  are  no  traces  of  fraud  and  the  provisions  of  his  will 
are  consonant  with  the  state  of  his  affections.7     Or,  where  it  was 

1  Sanderson  v.  Sanderson,  52  N.  J.  Eq.  243. 

2  Fraser  v.  Jennison,  42  Mich.  206. 

3  Merrill  v.  Bolston,  5  Eedf.  220. 

4  Sherley  v.  Sherley,  81  Ky.  240. 

5  Spencer  v.  Moore,  4  Oal.  423;  Van  Alst  v.  Hunter,  5  Johns.  Oh.  148; 
Kerr  v.  Lunsford,  31  W.  Va.  680,  2  L.  E.  A.  668;  Nicholas  v.  Kershner, 
20  W.  Va.  251. 

6  Bleecker  v.  Lynch,  1  Bradf.  458;  Cornwell  v.  Biker,  2  Dein.  354; 
Horn  v.  Pullman,  72  N.  Y.  269. 

-  Carroll  v.  Norton,  3  Bradf.  291;  Ee  Wheeler's  Will,  56  N.  Y.  S.  E.  709: 
Collins  v.  Townley,  21  N.  J.  Eq.  353. 


350  MEDICAL  JURISPRUDENCE    OF    INSANITY. 

entirely  plain  that  lie  understood  the  will  and  knew  the  disposi- 
tion he  was  making  of  his  property.1  Nor  is  impairment  by  age 
and  mental  strain  and  excitement  alone  sufficient.2  Nor  is  old 
age  combined  with  declining  health,  and  the  failure  of  the  testa- 
tor to  recollect  and  understand  certain  transactions,2  or  with 
failing  health  or  feebleness,  and  deafness,4  or  with  defective  eye- 
sight, hearing,  and  memory.5  Nor  will  old  age  and  physical  in- 
'firmities  usually  attending  it  invalidate  a  will  though  the  disposi- 
tion was  unequal.6  And  a  will  by  a  testator  able  to  recognize  his 
attendants  and  visitors,  and  who  remembered  the  existence  of  a 
former  will  and  conversed  intelligently  in  regard  to  a  second  one,, 
and  expressed  satisfaction  with  it  when  read  over,  is  valid  though 
he  was  seventy  years  old  and  had  had  an  epileptic  attack  a  few 
days  before  making  it.7  Nor  will  age  and  great  debility  and  the 
fact  that  the  testator's  mind  was  torpid  and  inactive  invalidate 
his  will  where  the  defects  seemed  to  be  of  sensibility  rather 
than  of  intellect,  and  the  making  of  the  will  was  a  subject  in 
which  he  felt  a  particular  interest  and  in  which  he  carried  out  a 
long-cherished  project.8 

An  instruction  in  a  will  contest,  however,  that  mere  physical 
weakness  or  disease,  old  age,  eccentricity,  blunted  perception,, 
weakened  judgment,  and  failing  memory  or  mind  are  not  neces- 
sarily inconsistent  with  testamentary  capacity,  and  that  one's 
memory  may  be  failing  and  his  mind  unsound  and  his  mental 
powers  weakened  and  he  still  have  testamentary  capacity,  with- 
out reference  to  the  significance  of  such  facts  as  evidence,  is  ob- 
jectionable as  in  effect  a  withdrawal  of  such  evidence  from  the 
consideration  of  the  jury.9     And  a  will  made  by  a  testator  of 

1  Be  Snelling,  44  N.  Y.  S.  B.  477;  Lawrence  v.  Lawrence,  4  K  T.  "Week. 
Dig.  299;  Chrisman  v.  Chrisman,  16  Or.  127;  Re  WoodfaU's  Will,  7  Pliila. 
528;  Taylor  v.  Kelly,  31  Ala.  59,  68  Am.  Dec.  150;  Lodge  v.  Lodge,  2 
Houst.  (Del.)  419. 

n-  Lyons  v.  Van  Eiper,  26  N.  J.  Eq.  337. 

3  Clarke  v.  Davis,  1  Eedf.  219;  Creely  v.  Ostrander,  3  Bradf.  107;  Mon- 
tague v.  Allan,  78  Va.  592. 

4  O'Connor  v.  Madison,  98  Mich.  183. 
6  Ee  Napfle's  Estate,  134  Pa.  494. 

6  Kise  v.  Heath,  33  N.  J.  Eq.  239. 
1  Harris  v.  Betson,  28  N.  J.  Eq.  213. 

8  Watts  v.  Bullock,  1  Litt.  252. 

9  Richmond's  Appeal,  59  Conn.  226. 


LEGAL   ADJUDICATIONS    IN    CIVIL    CASES.  351 

great  age  and  of  impaired  mind  and  memory  ought  not  to  be  sus- 
tained unless  it  appears  that  the  disposition  emanated  from  free 
will,  without  the  interposition  of  others,  and  accorded  with  inten- 
tions previously  expressed  or  implied  from  family  relations.1 
And  old  age  and  an  enfeebled  mind,  combin\  q  with  the  fact  that 
the  testator  failed  to  provide  for  his  wife  in\  .3  will  and  enter- 
tained unreasonable  fears  of  loss  and  damage  and  was  disturbed 
and  prostrated,  and  talked  strangely  and  purchased  goods  without 
asking  the  price,  furnish  evidence  showing  want  of  testamentary 
capacity.2  As  does  forgetfulness  combined  with  the  fact  that  he 
was  under  the  influence  of  a  colored  woman  whom  he  had  eman- 
cipated, yielding  implicitly  to  all  her  wishes  and  having  no  mind 
or  will  of  his  own,  and  had  lost  all  regard  for  the  dictates  of 
natural  affection.3  Nor  will  a  codicil  to  a  will  executed  by  a  very 
aged  testator  immediately  before  death  be  admitted  to  probate 
where  the  evidence  of  capacity  was  weak  and  came  from  ques- 
tionable sources,  and  reprehensible  acts  had  been  concealed  as  far 
as  possible." 

So,  proof  of  loss  of  memory  of  recent  occurrences  by  an  aged 
testator  is  not  alone  sufficient  to  show  testamentary  incapacity/ 
Nor  is  forgetfulness  combined  with  the  fact  that  a  testator  at 
times  labored  under  slight  delusions,6  or  with  lack  of  coherency 
in  conversations,  and  childishness,  and  the  fact  that  the  testator 
had  made  different  provisions  from  those  contained  in  former 
wills.7  And  suggestions  made  to  a  testator  at  the  time  the  will 
was  made  not  to  forget  certain  persons,  though  proper  to  be  con- 
sidered, do  not  warrant  the  jury  in  inferring  that  someone  would 
have  been  forgotten  but  for  such  suggestions,  thus  raising  an  in- 
ference against  capacity.8  JSTor  will  a  failure  of  memory  on  the 
part  of  a  testator  nine  months  after  making  his  will,  evidenced 
by  his  statements  that  he  had  given  his  wife  a  part  of  his  per- 

1  Ee  Ames,  51  Iowa,  596. 

2  Hoskins  v.  Hoskins  (Ky.)  7  S.  W.  516. 

3  Denton  v.  Franklin,  9  B.  Mon.  28. 

4  Jones  v.  Goodrich,  5  Moore,  P.  C.   16. 

6  Ee  Eddy,  32  N.  J.  Eq.  701;  Prentis  v.  Bates,  88  Mich.  567. 
6  Children's  Aid  Soc.  v.  Loveridge,  70  N.  Y.  387. 
1  Ee  Clearwater,  17  N.  Y.  S.  E.  794. 
8  Thornton  v.  Thornton,  39  Vt.  122. 


352  MEDICAL   JUBISPRUDENCE    OF    INSANITY. 

sonal  estate  when  he  had  not  done  so,  be  any  criterion  of  the  con- 
dition of  his  mind  at  the  time  of  the  execution  of  his  will,  where 
he  was  enfeebled  by  a  severe  illness  at  the  time  of  making  the 
statements.1  And  a  defective  memory  combined  with  eccen- 
tricities and  childishness  and  the  fact  that  the  will  gave  the  prop- 
erty to  the  general  government  will  not  invalidate  it  where  he 
was  competent  to  manage  a  large  property  unaided  and  without 
•  waste  or  depreciation.2  And  evidence  that  the  testator  asked  for 
money  which  had  already  been  paid  furnishes  no  ground  for  an- 
nulling his  will.3  And  the  fact  that  he  bequeathed  property 
which  did  not  belong  to  him  is  a  mere  circumstance  from  which 
a  state  of  mind  unfavorable  to  capacity  might  be  inferred,  but 
which  ought  not  to  prevail  against  positive  testimony  showing 
competency.4  Nor  is  testamentary  incapacity  shown  by  proof  of 
old  age  and  forgetfulness,  combined  with  the  fact  that  the  testa- 
trix had  made  an  unjust  and  unfounded  accusation  against  a  per- 
son having  no  natural  claim  upon  her,  where  she  recollected  and 
mentioned  a  large  number  of  her  grandchildren  and  understood 
the  provisions  of  the  will  ;=  or  combined  with  absent-mindedness 
and  amorous  remarks  and  profanity  and  abusiveness,  where  the 
will  was  prepared  from  directions  given  by  testator  when  he  pos- 
sessed all  of  his  faculties.6 

So,  ability  to  remember  the  names  of  relatives  and  to  judge 
soundly  of  an  act  about  to  be  done  is  not  a  legal  test  of  testa- 
mentary capacity.7  And  the  omission  by  a  testator  of  a  name  of 
one  of  his  eleven  children  in  giving  instructions  for  his  will  and 
mistakes  in  the  names  of  some  of  the  others  do  not  furnish  evi- 
dence of  want  of  testamentary  capacity.8  Nor  does  a  failure  to 
remember  the  name  of  a  grandchild.9  Nor  is  imbecility  estab- 
lished by  failure  of  a  testatrix  to  recognize  a  friend  or  relative  at 
jfirst  view  on  a  few  occasions,  and  the  fact  that  she  busied  herself 

1  Ee  Wintermute,  27  X.  J.  Eq.  447. 

s  Ee  Merriam,  42  X.  T.  S.  E.  619,  Affirmed  136  N.  Y.  58. 

3  Jackson  v.  Hardin,  83  Mo.  175. 

4  Marks  t.  Bryant,  4  Hen.  &  M.  91. 
6  Merrill  v.  Eush,  33  N.  J.  Eq.  537. 
6  Ee  Fow,  147  Pa,  264. 

1  Kramer  v.  Weinert,  81  Ala.  414. 
8  Ee  Wintermute,  27  X.  J.  Eq.  447. 

5  Martin  v.  Thayer,  37  W.  Va.  38. 


LEGAL   ADJUDICATIONS    IN   CIVIL    CASES.  353 

in  making  a  collection  of  dolls  and  toys  and  arranging  them  just 
previous  to  a  Christmas  festival.1  But  the  decision  of  a  surrogate 
in  refusing  to  probate  a  will  will  not  be  disturbed  where  the  tes- 
tator failed  to  recognize  his  children  and  inquired  how  many  he 
had,  and  could  only  name  a  part  of  them,  and  the  subscribing 
witnesses  did  not  regard  him  as  possessed  of  testamentary  capaci- 
ty.2 And  forgetfulness  of  neighbors  and  friends  after  receiving 
a  hurt,  and  weeping  upon  being  informed  who  they  are,  evi- 
dences a  feeble  intellect,  and  is  strong  evidence  of  mental  disabil- 
ity when  standing  alone,  but  is  also  evidence  of  nervous  excite- 
ment, and  will  not  invalidate  a  will  as  against  proof  that  the  tes- 
tator not  only  understood  the  matters  of  business  he  transacted 
but  remembered  them.3 

§  38.  Physical  condition. 

Mere  physical  weakness  is  not  evidence  of  insanity,4  and  a  dis- 
eased bodily  condition  is  not  entitled  to  weight  on  the  question 
of  the  validity  of  the  will  unless  the  bequests  are  extravagant  or 
widely  different  from  those  which  the  situation  of  the  testator 
and  of  his  family  would  warrant.5  Or  unless  there  was  some 
actual  manifestation  or  development  of  irrationality.6  Thus  evi- 
dence of  nervousness  and  its  effects  is  not  sufficient  to  show  want 
of  testamentary  capacity,7  though  accompanied  by  physical  weak- 
ness,8 and  though  it  be  such  as  to  cause  the  testator  to  become 
agitated  or  unconscious  when  attempting  complicated  business.9 
Nor  is  evidence  of  frequent  sleeplessness,  flightiness,  or  violent 

1  Watson  v.  Donnelly,  28  Barb.  653. 

2  Dumond  v.  Kiff,  7  Lans.  465. 

*  Reynolds  v.  Boot,  62  Barb.  250. 

For  Dr.  Clevenger's  discussion  on  this  subject,  see  Age,  chap.  xix. 

4  Bice  v.  Bice,  50  Mich.  448,  53  Mich.  432;  Stoutenburgh  v.  Hopkins,  43 
N.  J.  Eq.  577;  Kimball  v.  Cuddy,  117  HI.  213;  Doyle's  Estate,  7  Pa.  Co. 
Ct.  657;  Thompson  v.  Kyner,  65  Pa.  368. 

5  Clarke  v.  Sawyer,  3  Sandf.  Ch.  352,  Reversed  on  other  grounds,  2  N.  Y. 
498. 

6  LaBau  v.  Vanderbilt,  3  Bedf.  382.  And  see  Be  Lennig's  Estate,  4  Pa. 
Dist.  B.  94. 

7  Be  Kerney's  Estate,  148  Pa.  218. 

8  Hoban  v.  Campau,  52  Mich.  346. 

•  Kinleside  v.  Harrison,  2  Phillini.  Eccl.  Bep.  449. 

23 


354  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

outbursts  of  passion  from  the  use  of  intoxicants  and  narcotics.1 
And  the  rule  is  the  same  where  nervous  excitement  or  apprehen- 
sion of  death  is  caused  by  the  fact  that  the  testator  was  about  to 
undergo  a  dangerous  surgical  operation.2  So,  the  mere  fact  that 
a  testator  suffered  from  paroxysms  of  severe  headache,  which 
were  aggravated  by  despondency  over  financial  losses,  will  not 
incapacitate  him  to  make  a  will.3  Nor  does  evidence  that  a  tes- 
tator had  a  sore  leg  show  such  infirmity  as  would  tend  to  disqual- 
ify him.4  And  declarations  by  a  dyspeptic  that  he  had  no  stom- 
ach, or  that  his  stomach  was  bad,  is  not  evidence  of  mental 
incapacity/  Nor  is  testamentary  incapacity  established  by  the 
fact  that  the  testatrix  was  deformed  and  had  been  so  from 
infancy,  and  that  owing  to  her  condition  she  had  never  been 
sent  to  school,  and  had  avoided  strangers  and  had  occasional 
fits,  where  her  mind  was  not  deformed  or  her  affections  be- 
numbed.6 

So,  the  fact  that  a  testator  was  racked  and  tortured  by  pain 
which  had  reduced  his  physical  and  mental  vigor  will  not  affect 
the  validity  of  his  will  where  there  was  nothing  to  show  irration- 
ality or  delusion.7  Nor  will  it  be  affected  by  evidence  of  danger- 
ous sickness  and  the  approach  of  death  and  such  weakness  that 
the  testator  could  only  make  his  mark  to  his  will  with  assistance, 
where  the  subscribing  witnesses,  both  of  whom  were  apparently 
disinterested,  declared  him  to  be  rational.8  And  testimony  of 
medical  experts,  based  upon  anterior  observation,  that  the  testa- 
tor who  was  very  sick  could  not  have  been  competent,  will  not 
invalidate  his  will  where  it  was  not  an  unnatural  one,  and  he  was 
able  to  give  instructions  for  its  preparation  and  complete  its  exe- 
cution.* So,  evidence  that  the  testator  was  in  the  last  stages  of 
consumption,   and   was   compelled   to   continually   struggle  for 

1  McCullough's  Will,  35  Pitts.  L.  J.  169,  Affirmed  in  Keating's  Appeal, 
36  Pitts.  L.  J.  283. 

2  Ke  Linton's  Appeal,  104  Pa.  228. 

8  Ee  Spellier's  Estate,  2  Pa.  Disk  E.  513. 

4  Thomas  v.  Stump,  62  Mo.  275. 

6  Prentis  v.  Bates,  88  Mich.  567,  Affirmed  93  Mich.  234,  17  L.  E.  A.  494. 

6  Ee  Howard's  Will,  5  T.  B.  Mon.  199. 

7  McMaster  v.  Scriven,  85  Wis.  162. 

8  Ee  Patterson's  Will,  36  N.  Y.  S.  E.  813. 

9  Ee  Connor's  WiU,  7  N.  Y.  Supp.  855. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  355 

breath,  and  that  his  strength  was  leaving1  him,  is  not  sufficient  to 
establish  testamentary  incapacity,  though  his  physicians  thought 
him  delirious  because  he  insisted  that  he  was  better.1  And 
paralysis,  however  universal,  does  not  always  affect  the  mind 
equally  with  the  body,  and  does  not  therefore  show  that  the  per- 
son afflicted  could  not  have  a  disposing  mind.2  And  the  fact 
that  a  testator  was  stricken  with  paralysis  and  remained  speech- 
less does  not  show  testamentary  incapacity  where  his  mind  re- 
mained unimpaired.3  Nor  is  a  will  made  by  a  testator  some  time 
after  having  an  epileptic  convulsion  invalid  where  when  he  re- 
covered from  such  attacks  his  mind  became  clear  and  strong  and 
his  will  was  reasonable.4  And  such  a  will  will  be  admitted  to 
probate  where  there  is  nothing  to  show  incapacity  except  during 
the  continuance  of  the  influence  of  the  fit,  though  there  is  entire 
absence  of  proof  of  instructions  or  knowledge  of  contents,  and 
the  attesting  witnesses  could  recollect  nothing  of  the  circum- 
stances attending  its  execution.5  Nor  will  an  epileptic  fit  about 
five  minutes  after  signing  the  will,  after  which  the  testator  sank 
rapidly  and  died,  and  the  opinion  of  the  subscribing  witnesses 
that  the  testator  did  not  know  what  he  was  doing,  invalidate  it 
as  against  the  testimony  of  the  person  who  drew  it,  and  who  had 
no  interest  under  it,  that  the  testator  fully  comprehended  its  pro- 
visions.6 And  evidence  that  an  aged  testator  had  been  subject 
to  occasional  fits  of  epilepsy  for  some  years,  which  produced 
great  prostration  and  enfeebled  his  mental  energies  and  impaired 
his  memory,  and  that  he  took  large  doses  of  laudanum  to  relieve 
his  sufferings  and  was  at  times  childish  and  incapable  of  much 
effort  and  failed  to  recognize  acquaintances,  will  not  invalidate 
his  will  as  against  proof  of  business  capacity  and  that  he  attended 
to  his  own  business  and  was  apparently  in  perfect  possession  of 
his  faculties  at  the  time.7     Nor  will  proof  of  general  paresis  and 

1  Ayres  v.  Ayres,  43  N.  J.  Eq.  565. 
s  M'Daniel's  Will,  2  J.  J.  Marsh.  331. 

3  Eothrock  v.  Botkrock,  22  Or.  551.     And  see  Ee  Gatley's  Estate,  4  Pa. 
Pist.  E.  52. 

4  Ee  Eapplee,  66  Hun,  558. 

6  Foot  v.  Stanton,  1  Deane  &  S.  19. 
6  Ee  Lewis's  Will,  51  Wis.  101. 
,  Brown  v.  Torrey,  24  Barb.  583. 


356  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

that  the  testator  had  been  confined  in  an  asylum,  as  against  such 
evidence  of  business  capacity.1  Though  evidence  of  the  attend- 
ing physician  that  the  testatrix  was  not  of  sound  mind  and  that 
she  had  chronic  gastritis,  which  of  itself  weakens  the  mind,  and 
that  she  was  easily  persuaded  and  would  contradict  herself,  to- 
gether with  the  evidence  of  friends  that  she  was  melancholy  and 
nervous  and  a  mental  and  physical  wreck,  is  sufficient  to  entitle 
"the  contestants  to  have  the  question  submitted  to  the  jury.2 

So,  proof  that  opium  was  administered  in  moderate  doses  under 
directions  of  an  attending  physician  to  a  testator  during  a  pro- 
tracted illness  to  alleviate  pain  will  not  invalidate  a  will  made 
during  such  illness,  in  the  absence  of  proof  that  it  affected  his 
mental  powers  further  than  to  cause  sleepiness  or  that  he  was  at 
all  affected  by  it  at  the  time,3  though  in  a  few  instances  the  tes- 
tator had  delusions;4  and  drowsiness  and  the  fact  that  the  testator 
appeared  delirious  a  day  or  two  before  are  not  sufficient  to  estab- 
lish incompetency  to  make  a  change  in  his  will.6  But  a  finding 
setting  aside  a  will  will  not  be  disturbed  on  appeal  where  it  ap- 
pears that  the  testator  was  a  bed-ridden  invalid,  subsisting  mainly 
upon  whisky  and  morphine,  not  taking  the  latter  in  quantities 
sufficient  to  affect  him  mentally,  but  which  made  him  drowsy, 
and  that  he  disinherited  a  daughter  because  of  her  desire  to 
marry  a  man  whom  he  did  not  like.6  And  evidence  that  the 
testator  was  in  a  state  of  chronic  stupor  at  the  time,  from  which 
he  could  be  awakened  but  into  which  he  would  speedily  relapse, 
the  interval  of  his  lucidity  being  too  brief  for  any  considerable 
mental  exertion,  and  that  he  only  wrote  three  letters  to  his  name, 
which  was  finished  by  another,  is  sufficient  to  justify  the  cancel- 
ation of  his  will  in  the  absence  of  evidence  of  a  request  to  com- 
plete his  signature.7  Nor  can  a  will  be  admitted  to  probate  in 
the  absence  of  evidence  that  the  testator  declared  it  to  be  his  will 
or  requested  the  witnesses  to  sign  where  the  evidence  tends  to 

1  Ee  Kiedaisch,  2  Connoly,  438. 
8  Crockett  v.  Davis,  81  Md.  134. 

3  Re  Glockner,  17  N.  Y.  S.  E.  798. 

4  Miller  v.  Oestrich,  157  Pa.  264. 
*  Jackson  v.  Hardin,  83  Mo.  175. 

«  Carlin  v.  Baird,  11  Ky.  L.  Eep.  932. 
1  Knapp  v.  Eeilly,  3  Dem.  427. 


LEGAL    ADJUDICATIONS    M    CIVIL    CASES.  357 

show  that  he  was  in  a  dazed  and  stupefied  condition,  taking  no 
interest  in  anything  that  was  going  on,  and  wandering  in  his 
mind,  and  that  he  signed  with  his  mark  because  he  was  too  weak 
to  write  his  name.1  And  probate  will  be  refused  where  the  tes- 
tator's physical  powers  had  so  failed  as  not  to  be  perceptible,  and 
his  flesh  was  cold  and  he  was  too  weak  to  be  lifted  up  to  make 
his  mark,  and  the  evidence  as  to  his  intention  was  conflicting.8 

The  fact  that  a  testator  died  within  a  few  hours  after  making 
his  will,  however,  is  not  alone  sufficient  to  establish  testamentary 
incapacity.3  And  occasional  flightiness  or  wandering  of  intellect 
on  the  part  of  a  testator  during  his  last  sickness  immediately  pre- 
ceding his  death  furnishes  very  slight,  if  any,  evidence  that  that 
state  of  mind  continued  so  as  to  impair  the  validity  of  a  will  sub- 
sequently executed.4  Nor  is  a  will  invalidated  by  evidence  of 
physicians  that  the  invariable  effects  of  the  disease  with  which 
the  testator  was  afflicted  upon  the  mind  of  the  patient  was  to  pro- 
duce frenzy  previous  to  death,  where  it  does  not  appear  that  the 
state  of  frenzy  had  commenced  at  the  time  the  will  was  executed, 
and  there  was  evidence  that  he  was  in  his  right  mind  at  the  time.6 
]STor  will  the  mere  fact  that  a  testator  was  affected  by  a  disease  of 
the  brain  producing  occasional  convulsions  and  partial  paralysis, 
and  that  two  of  these  convulsions  actually  occurred  while  he  was 
dictating  his  will,  be  sufficient  to  invalidate  it  where  they  seem 
to  have  little  or  no  effect  upon  his  mind.6 

An  inference  of  testamentary  capacity  arising  from  an  intelli- 
gent response  to  questions  and  intelligent  questions  upon  the  part 
of  a  testator  at  the  time  of  making  his  will,  however,  is  weakened, 
if  not  entirely  overcome,  by  evidence  that  stimulants  had  been 
administered  during  several  days  to  keep  up  his  strength,  and 
that  he  was  failing  rapidly,  and  that  his  hands  and  limbs  were 
then  cold,  and  he  died  a  few  hours  later.7  Nor  will  a  will  made 
by  a  testator  on  his  death  bed  in  favor  of  his  wife  to  the  exclu- 

1  Ee  Coop's  Will,  24  N.  T.  S.  E.  417. 

5  Byard  v.  Conover,  39  N.  J.  Eq.  244. 

3  Jackson  v.  Jackson,  39  N.  Y.  153. 

4  McMasters  v.  Blair,  29  Pa.  298. 

6  Berry  v.  Hamilton,  10  B.  Mon.  129. 
6  Parramore  v.  Taylor,  11  Gratt.  220. 

1  Kingsley  v.  Blanchard,  66  Barb.  317. 


358  MEDICAL    JtTKISPBUDENCE    OF    INSANITY. 

sion  of  other  members  of  his  family  be  admitted  to  probate  where 
he  was  of  weak  and  impaired  capacity  from  disease  affecting  the 
brain  which  produced  torpor  and  rendered  his  mind  incapable  of 
exertion  unless  aroused,  and  the  dispositions  in  the  will  were  a  to- 
tal departure  from  his  intentions  previously  expressed.1  And  a 
will  made  by  a  testator  suffering  from  progressive  paresis,  when 
in  a  state  of  intermittent  exaltation  and  depression  denoting 
gradual  transition  to  a  state  of  absolute  dementation  immediately 
preceding  death,  leaving  his  wife  but  a  small  legacy  and  giving 
a  reason  therefor  which  was  not  true,  will  be  held  invalid.3 

§  39.  Hereditary  insanity. 
Insanity  which  will  invalidate  a  will  cannot  be  established  by 
proof  of  hereditary  or  constitutional  insanity  on  the  part  of  col- 
lateral kinsman.3  And  no  presumption  that  a  testator  was  insane 
arises  from  proof  that  his  mother  had  been  so,  as  against  clear 
satisfactory  proof  of  sanity.4  But  while  evidence  of  hereditary 
insanity  will  not  of  itself  make  out  a  case  it  is  admissible  as  tend- 
ing to  corroborate  direct  proof  of  insanity.6  Though  the  insanity 
of  a  sister  and  niece  does  not  tend  to  prove  hereditary  insanity 
where  their  malady  was  attributed  to  disease  and  its  characteristics 
were  in  no  respect  similar  to  those  in  question  in  the  case  of  the 
testator.6 

§  40.  Proof  as  to  partial  insanity  and  delusion. 
Proof  of  partial  insanity  of  a  testator  to  invalidate  a  will  must  be 
more  clear  and  satisfactory  than  proof  of  general  insanity.7  And 
proof  of  the  existence  of  a  delusion  and  of  its  effect  to  invalidate 
a  will  must  be  more  direct  and  full  where  the  testator  is  generally 
sane  and  his  will  is  reasonable  on  its  face  than  is  required  in  cases 
of  alleged  general  insanity.8  Precautions  on  the  part  of  a  testator 
to  prevent  any  part  of  his  estate  from  going  to  a  divorced  wife 

1  Harwood  v.  Baker,  3  Moore,  P.  0.  282. 
8  Re  Loewenstine's  Estate,  2  Misc.  323. 

3  Frere  v.  Peacocke,  3  Curt.  Eccl.  Rep.  664. 

4  Snow  v.  Benton,  28  HI.  306. 

6  Smith  v.  Kramer,  5  Pa.  L.  J.  226. 

6  Prentis  v.  Bates,  88  Mich.  567,  Affirmed  93  Mich.  234,  17  L.  R.  A.  494. 

1  Mullins  v.  Cottrell,  41  Miss.  291. 

8  Mullins  v.  OottreU,  41  Miss.  291. 


LEGAL    ADJUDICATIONS    IN   CIVIL   CASES.  359 

cannot  be  regarded  as  evidence  of  an  insane  delusion  with  refer- 
ence to  her  wishes.1     Nor  are  prejudice  upon  the  part  of  a  testator 
against  some  of  his  children,  and  unjust  remarks  against  them  un- 
warranted by  the  facts,  sufficient  to  establish,  as  matter  of  law,  that 
he  has  insane  delusions  or  is  devoid  of  testamentary  capacity.2 
Nor  is  a  mistaken  statement  of  a  testatrix  that  her  grandson  was 
not  her  son's  child.3     And  evidence  of  an  opinion  held  by  a  testator 
that  his  daughter  had  misused  and  mistreated  him,  and  of  a  con- 
trary opinion  held  by  the  daughter,  is  not  sufficient  to  justify  an 
instruction  as  to  the  effect  of  an  insane  delusion.'1     And  a  belief 
on  the  part  of  a  woman  that  she  had  been  treated  unjustly  and 
harshly,  and  that  advantage  had  been  taken  of  her  by  her  brothers 
and  sisters,  in  connection  with  evidence  that  she  was  a  woman  of 
arbitrary  temper,  ignorant,  illiterate,  suspicious,  dull  of  compre- 
hension, and  had  no  business  ideas  and  habits,  and  was  difficult  to 
get  along  with,  does  not  show  an  insane  delusion  which  will  in- 
validate her  will,  though  its  dispositions  might  have  been  influ- 
enced by  it.6     Nor  will  mental  unsoundness  be  inferred  from  an 
apparently  causeless  assertion   by  a   testator  that   he   had  been 
robbed  and  was  destitute.6     And  an  opinion  entertained  by  a  tes- 
tator that  his  rights  as  to  the  boundary  lines  between  his  land 
and  that  of  his  son  were  being  infringed  upon,  and  that  his  son 
was  helping  it  along  because  he  and  other  parties  concerned  were 
Masons,  which  opinion  was  unfounded,  does  not  establish  an  in- 
sane delusion  which  will  affect  the  validity  of  his  will  where  he 
was  irritated  against  his  son  and  thought  he  had  not  treated  him 
right,  but  is  rather  a  case  of  unreasonable  prejudice  and  perverse 
opinion.7     Nor  will  proof  that  a  testatrix  on  several  occasions  la- 
bored under  the  delusion  that  she  was  still  living  at  a  former 
residence  in  another  street,  and  that  on  one  occasion  she  used 
irrational  language  imagining  that  a  conspiracy  was  in  progress 
and  that  she  heard  voices,  and  said  many  things  which  were  not 

1  Be  Tracy's  Will,  11  N.  Y.  S.  E.  103. 
8  Schneider  v.  Manning,  121  111.  376. 
3  He  Spencer's  Estate,  96  Cal.  448. 
*  Skorb  v.  Brubaker,  94  Ind.  165. 
6  Ke  Gross,  14  N.  Y.  S.  E.  429. 

6  Eodger's  Estate,  19  W.  N.  C.  383. 

7  Ee  White's  Will,  121  N.  Y.  406. 


360  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

remembered,  invalidate  her  will  where  her  actions  were  accounted 
for  in  part  by  the  fact  that  she  drank  ale,  after  the  discontinuance 
of  which  such  symptoms  disappeared.1  Nor  will  the  will  of  an 
aged  testatrix  be  invalidated  by  evidence  that  her  physical  pow- 
ers were  generally  failing  and  that  she  was  miserly  at  times,  un- 
clean in  her  habits,  and  that  she  was  a  believer  in  witchcraft  and 
talked  of  buried  treasures  and  other  absurdities,  and  pretended  to 
have  had  personal  interviews  with  the  Divinity  and  the  evil  one, 
and  to  have  entered  Heaven  and  conversed  with  its  inhabitants, 
and  expressed  a  desire  to  be  robed  like  the  angels,  where  she  was 
prudent  and  sensible  in  the  management  of  her  household  affairs- 
and  shrewd  at  a  bargain,  and  the  dispositions  of  her  will  were  in 
accordance  with  natural  claims  upon  her  bounty.2  But  a  will, 
though  made  by  a  person  who  was  prudent  and  conducted  herself 
like  ordinary  people  in  the  ordinary  affairs  of  life,  has  been  held 
invalid  where  she  believed  herself  to  be  a  member  of  the  Holy 
Trinity  and  in  direct  communication  with  God,  and  that  she  was 
above  God  and  would  sit  in  Judgment  on  her  fellow  creatures 
with  her  Creator  on  Judgment  Day,  and  in  other  similar  delu- 
sions, mistakenly  believing  that  attempts  had  been  made  to  poison 
her  and  that  she  was  blind. 3 

So,  a  statement  in  a  will  that  the  testator  had  given  a  sum  of 
money  to  his  daughter,  which  is  contradicted  by  her,  is  not 
sufficient  to  show  that  he  labored  under  an  insane  delusion  where 
there  is  evidence  of  an  investment  by  him  which  might  have 
been  regarded  as  an  investment  for  her  husband  and  charged  to 
her  as  such."  And  a  statement  by  a  testator  who  had  given  his 
property  to  nieces  to  the  exclusion  of  a  supposed  son,  that  he  had 
no  son,  does  not  show  an  insane  delusion  which  will  invalidate 
his  will  where  there  was  evidence  that  he  was  only  an  adopted 
son.6  Nor  will  a  mistaken  belief  on  the  part  of  a  testator  in  the 
infidelity  of  his  wife  and  the  illegitimacy  of  his  son,  and  that  his. 
brothers  sought  to  poison  him,  show  an  insane  delusion  which 
will  affect  his  will  where  the  will  itself  was  fair  and  reasonable 

1  Children's  Aid  Soc.  v.  Loveridge,  70  N.  Y.  387. 
*  Ee  Vedder,  6  Dem.  92. 

3  Smith  y.  Tebbitt,  L.  E.  1  Prob.  &  Div.  401. 

4  Jackson  v.  Hardin,  83  Mo.  175. 

5  Ee  Ziegler,  47  N.  Y.  S.  E.  491. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  361 

and  it  does  not  appear  that  his  belief  affected  his  conduct  or  its 
provisions.'  And  evidence  that  the  testatrix  sought  to  escape  an 
imaginary  robber,  and  had  a  delusion  that  her  brother  had 
killed  seven  men  and  cut  them  up  and  thrown  them  into  a  well, 
and  that  she  destroyed  her  bed  and  clothing  and  believed  that 
her  son  and  a  young  lady  had  procured  a  large  kettle  with  the 
purpose  of  boiling  her  in  it,  and  that  she  became  very  miserly 
and  had  a  fear  of  being  poisoned  by  her  son,  does  not  show  a 
state  of  habitual  insanity  which  will  shift  the  burden  of  proof 
that  her  will  was  made  during  a  lucid  interval,  where  such  actions 
were  far  apart  and  remote  from  the  will.2 

Delusive  ideas,  however,  which  ought  to  receive  their  condem- 
nation and  expulsion  at  once  from  the  simple  action  of  the  senses, 
and  those  opposed  to  the  simple,  ordinary,  and  universal  action 
of  reason  in  healthy  minds,  are  of  themselves  proof  of  insanity.3 
And  a  delusion,  though  insufficient  to  establish  testamentary  in- 
capacity, is  proper  to  be  considered  with  reference  to  the  question 
of  mental  weakness.4  And  evidence  of  insane  jealousy  on  the 
part  of  a  husband  whose  wife  was  a  woman  of  good  repute,  and 
that  he  frequently  denied  the  paternity  of  his  children  and 
abused  her  in  a  most  inhuman  manner  and  finally  shot  her  and 
then  committed  suicide,  is  sufficient  to  show  unsoundness  of 
mind  which  will  invalidate  his  will.6  So,  in  determining  as  to 
the  continual  existence  of  a  delusion,  the  contents  of  the  will  and 
the  circumstances  deemed  to  warrant  its  execution  will  be  taken 
into  consideration.6  And  the  mere  nonmanifestation  of  a  de- 
lusion proved  to  have  previously  existed,  at  any  particular  time, 
will  not  show  its  nonexistence.7  And  the  will  of  a  testator  who 
about  two  months  previous  had  had  an  illness  which  affected  his 
mind,  after  which  he  became  better  and  conducted  himself 
rationally,  made  at  about  the  time  of  a  return  of  the  symptoms 
of  mental  disease  which  took  the  form  of  an  uncontrollable  idea 

1  Ee  Cole's  Will,  49  Wis.  179. 

2  Chandler  v.  Barrett,  21  La.  Ann.  58,  99  Am.  Dec.  701. 

3  Smith  v.  Tebbitt,  L.  E.  1  Prob.  &  Div.  401. 

4  Ee  Storey's  WiU,  20  HI.  App.  183. 
6  Burkhart  v.  Gladish,  123  Ind.  338. 

•  Broughton  v.  Knight,  L.  E.  3  Prob.  &  Div.  64. 
1  Grimani  v.  Draper,  6  Notes  of  Cases,  418. 


362  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

that  lie  must  be  eternally  damned  for  having  received  communion 
unworthily,  after  which  he  was  pronounced  insane  by  a  medical 
board  and  died  in  a  lunatic  asylum,  will  not  be  admitted  to  pro- 
bate, though  it  was  sensible  and  contained  no  indications  of  hav- 
ing been  affected  by  his  delusion.1  So,  a  codicil  subsequently 
made  by  an  old  man  in  favor  of  a  young  woman  whom  he  desired 
to  marry  at  first  sight  when  he  was  unquestionably  insane  and  of 
whom  he  had  no  former  knowledge,  is  invalid  as  having  been 
made  under  the  influence  of  an  insane  delusion.2 

§  41.  Proof  of  undue  influence  or  fraud  and  incapacity. 
The  jury  may  take  into  consideration  the  condition  of-  the  tes- 
tator's mind  at  the  time  of  executing  his  will  in  determining  the 
question  of  fraud  and  undue  influence  in  connection  with  the 
relative  situation  of  the  testator  and  the  beneficiaries  under 
the  will,  and  the  testator's  surroundings  and  condition  and  the 
nature  and  extent  of  his  property,  and  all  the  circumstances  under 
which  the  will  was  made,  as  well  as  the  provisions  of  the  will 
itself.3  And  much  less  evidence  is  required  to  invalidate  a  will 
on  the  ground  of  undue  influence  when  it  is  doubtful  whether 
the  testator  was  sane  than  if  he  was  in  full  possession  of  all  his 
faculties.4  But  mere  weakness  of  intellect  does  not  establish 
undue  influence,  though  a  person  of  weak  intellect  may  more 
readily  become  the  victim  of  improper  influence ;  there  must  be 
some  evidence  of  influence  aside  from  weakness  of  intellect.6 
And  the  physical  condition  and  age  of  a  testator,  taken  separately 
from  the  condition  of  his  mind  and  memory,  are  not  proper  to  be 
considered  in  determining  the  existence  of  undue  influence;* 
though  a  less  degree  of  proof  of  mental  incapacity  and  undue 
influence  is  necessary  in  case  of  a  very  old  person.7  Neither  is 
the  operation  of  undue  influence  established  by  trivial  and  incon- 
sequent declarations  of  the  testator  and  slight  evidence  of  mental 
impairment  where  the  evidence  was  overwhelming  that  he  re- 

1  Symes  v.  Green,  1  Swab.  &  T.  401,  5  Jur.  N.  S.  742. 

2  Clarke  v.  Lear,  cited  in  1  PhiLLim.  Eccl.  Eep.  119. 

3  Eichenbach  v.  Euddach,  127  Pa.  564. 

4  Dennis  v.  "Weekes,  46  Ga.  514;  Kates'  Estate,  16  W.  N.  C.  100. 

*  Eeynolds  v.  Eoot,  62  Barb.  250;  Thompson  v.  Kyner,  65  Pa.  368. 

6  Muir  v.  Miller,  72  Iowa,  585. 

7  Smith  v.  Smith,  60  Wis.  329. 


LEGAL    ADJUDICATIONS    IN    CIVIL   CASES.  363 

tained  business  capacity,  especially  where  such  declarations  were 
made  several  years  after  the  will  was  executed.1  And  an  instruc- 
tion that  the  fact  that  the  testatrix  may  have  had  spells  of  disease 
which  affected  her  mind  will  not  invalidate  her  will  if  she  had 
mind  and  memory  sufficient  to  make  it  at  the  time,  and  was  not 
unduly  influenced  to  make  it,  is  not  objectionable  as  confining  the 
undue  influence  which  would  invalidate  the  will  to  the  very 
moment  it  was  signed.2  So,  influence  reached  only  by  a  uniform 
course  of  kind  treatment  in  connection  with  the  single  fact  of 
weakness  of  mind  raises  no  presumption  of  invalidity  against 
a  will.3 

The  fact  that  a  person  acting  as  the  spiritual  advisor  of  the  tes- 
tator, however,  takes  advantage  of  the  situation  to  become  the 
agent  and  manager  of  his  temporal  affairs,  and,  acting  in  both 
capacities,  becomes  a  donee  of  large  gifts  under  his  will,  furnishes 
strong  evidence  of  undue  influence.4  And  evidence  of  weakness 
and  imbecility  from  age  and  disease  incapacitating  a  testator  from 
attending  to  his  ordinary  business,  and  that  he  was  induced  to 
abandon  attorneys  previously  employed  and  employ  the  attorney 
for  the  principal  devisee  to  draw  his  will,  which  was  witnessed  by 
such  attorney  and  the  wife  and  a  relative  of  the  devisee,  when 
disinterested  witnesses  were  near  at  hand,  should  be  considered 
by  the  jury  in  determining  as  to  the  existence  of  undue  influence.5 
Nor  will  a  will  be  admitted  to  probate  where  there  was  evidence 
of  some  degree  of  mental  incapacity,  and  that  it  was  obtained 
from  the  testator  while  dying,  by  the  personal  suggestion  and  im- 
portunity of  the  person  who  wrote  the  will  and  procured  its  exe- 
cution, under  which  she  and  her  relations  took  a  large  benefit,  and 
that  the  testator  never  spoke  afterwards.6  And  a  will  should  be 
refused  probate  on  the  ground  of  undue  influence  exercised  upon 
an  enfeebled  mind  where  the  weight  of  evidence  was  against  the 
testator's  soundness  and  the  property  was  given  to  a  church  and 
the  only  persons  who  knew  of  the  preparation  of  the  will  were 

1  Herster  v.  Herster,  122  Pa.  239. 

3  Overall  v.  Bland,  11  Ky.  L.  Eep.  371. 
8  Re  Wood's  Estate,  13  Phila.  236. 

4  Middleton  v.  Sherburne,  4  Younge  &  C.  358. 
6  Jenkins  v.  Tobin,  31  Ark.  306. 

6  Tribbe  v.  Tribbe,  13  Jur.  793. 


364  MEDICAL   JURISPKUDENCE    OF    INSANITY. 

the  clergyman  and  council  of  the  church,  and  it  appeared  that 
when  sane  the  testator  evinced  a  dislike  for  the  church  and  ex- 
pressed affection  for  his  wife,  for  whom  no  adequate  provision 
was  made.1  And  proof  that  if  a  will  was  signed  by  the  testator 
it  was  done  in  haste  without  the  knowledge  of  anyone  but  the 
subscribing  witnesses,  and  of  bad  character  on  the  part  of  the 
writer  who  was  one  of  the  witnesses,  his  wife  and  young  son  be- 
ing the  others,  and  that  the  same  writer  and  the  same  witnesses 
had  prepared  and  attested  a  former  will  when  the  testator  was 
confessed^  insane,  are  circumstances  against  the  authenticity  of 
the  will.2 

§  42.  Proof  of  knowledge,  capacity,  and  intent. 
The  general  rule  is  that  where  the  capacity  of  a  testator  is 
doubtful  at  the  time  of  the  execution  of  his  will  there  must  be 
proof  of  instructions  or  of  knowledge  of  the  contents  and  of  his 
intent  to  make  the  dispositions  therein  provided  for.3  And  this 
is  especially  the  case  where  the  will  is  drawn  or  procured  through 
the  agent  or  principal  legatee  or  a  party  interested.4  And  the 
fact  that  a  testator  is  extremely  old,  imbecile  in  mind,  and  sur- 
rounded by  interested  parties  and  incapable  of  reading  or  writing 
renders  proof  of  knowledge  of  the  contents  of  his  will  indispens- 
able.5 And  proof  of  intent  and  free  will  is  necessary  though  he 
was  not  legally  incompetent  to  make  a  will  and  though  the  in- 
structions were  given  by  him,  especially  where  he  was  so  situated 
that  they  might  have  been  procured  by  undue  influence.8  Thus, 
a  provision  appointing  the  person  who  conducted  the  whole  trans- 
action, and  to  whom  the  testator  looked  to  show  him  where  to 
sign,  executor  of  the  will,  and  making  him  a  residuary  legatee, 

1  Ee  Forman's  Will,  1  Tucker  (N.  Y.)  205. 

2  Carrico  v.  Neal,  1  Dana,  163. 

3  Torokins  v.  Toinkins,  1  Bail.  L.  92,  19  Am.  Dec.  656;  McSorley  v. 
McSorley,  2  Bradf.  188;  Billinghurst  v.  Vicars,  1  Phillim.  EccL  Bep.  199. 
And  see  Burger  v.  Hill,  1  Bradf.  360. 

4  Benn  v.  Samos,  33  Tex.  760;  Billingkurst  v.  Vicars,  1  Phillim.  Eccl. 
Bep.  199;  Mitchell  v.  Thomas,  6  Moore,  P.  C.  137,  12  Jur.  967;  Mackenzie 
v.  Handasyde,  2  Hagg.  Eccl.  Bep.  211.  And  see  Wilson  v.  Mitchell,  101 
Pa.  495. 

6  Key  v.  Holloway,  7  Baxt.  576;  Hyatt  v.  Lunnin,  1  Dem.  14. 
6  Mowry  v.  Silber,  2  Bradf.  133. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  365 

will  not  be  upheld  where  there  was  no  reading  over  or  explana- 
tion.1 And  a  codicil  varying  the  bequests  contained  in  the  origi- 
nal will  to  the  advantage  of  the  drawer,  executed  when  the  tes- 
tator's capacity  was  doubtful,  will  not  be  admitted  to  probate  in 
the  absence  of  proof  of  knowledge  of  its  contents.3  And  the 
clearest  and  most  consistent  evidence  of  capacity  and  volition  is 
required  where  the  codicil  was  made  within  ten  days  of  the  testa- 
tor's death  when  in  a  state  of  extreme  debility,  and  all  his  confi- 
dential friends  were  excluded,  and  those  about  him  were  engaged 
in  the  execution  of  the  will,  and  it  made  bequests  irreconcilable 
with  his  character  and  intentions  as  proved  by  his  affections  and 
former  testamentary  disposition.3  Nor  will  one  prepared  by  a 
solicitor  in  his  own  favor  when  the  testator  was  of  fluctuating 
capacity  be  held  valid  where  the  court  is  not  satisfied  that  he  un- 
derstood the  contents  and  intended  it  to  become  operative,  though 
no  fraud  is  imputed  to  the  solicitor.4  A  will  thus  drawn  or  pro- 
cured from  a  testator  of  questionable  capacity  without  evidence 
as  to  circumstances  attending  its  execution,5  or  when  he  was  of 
advanced  age  and  weakened  powers,6  suggests  suspicion  and  cre- 
ates the  necessity  for  a  careful  scrutiny  into  the  facts,  requiring 
the  court  to  proceed  with  caution  and  circumspection  and  inquire 
whether  the  contents  of  the  instrument  harmonize  with  the  state 
of  the  testator's  affections  and  intentions.7  And  a  will  will  not 
be  held  valid  unless  the  suspicion  is  removed.8  The  presumption 
of  law  is  against  a  will  made  by  a  testator  of  uncertain  capacity 
which  was  prepared  by  a  legatee  in  his  own  favor,  and  the  bur- 
den of  showing  that  it  was  voluntary  and  understood  by  the  tes- 
tator rests  with  the  party  claiming  under  it."  And  the  same  rule 
applies  to  a  codicil  reducing  provisions  for  certain  beneficiaries 
under  the  original  will,  and  giving  the  residue,  which  was  the 

1  Billinghurst  v.  Vicars,  1  Phillim.  Eccl.  Eep.  199. 

2  Mitchell  v.  Thomas,  6  Moore,  P.  0.  137,  12  Jur.  967,  5  Notes  of  Cases, 
600. 

3  Brydges  v.  King,  1  Hagg.  Eccl.  Bep.  256. 

4  Croft  v.  Day,  1  Curt.  Eccl.  Bep.  782. 
6  Whelpley  v.  Loder,  1  Dem.  368. 

•  Weir  v.  Fitzgerald,  2  Bradf.  42. 

1  Gombault  v.  Public  Administrator,  4  Bradf.  226. 

8  Barry  v.  Butlin,  1  Curt.  Eccl.  Eep.  637. 

9  Harvey  v.  Sullens,  46  Mo.  147,  2  Am.  Bep.  491. 


3G6  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

largest  part  of  the  estate,  to  the  party  preparing  it.1  And  weak- 
ness of  mind  on  the  part  of  a  testator,  though  not  sufficient  to 
create  testamentary  incapacity,  and  the  fact  that  the  person  un- 
der whose  advice  the  will  was  prepared  receives  a  large  benefit 
under  it,  cast  the  burden  upon  such  person  of  showing  affirma- 
tively that  the  testator  had  a  full  understanding  of  the  nature  of 
the  dispositions  contained  in  it  and  acted  voluntarily.2  So,  the- 
proof  of  knowledge  of  contents  and  approval  to  meet  and  over- 
come the  burden  of  proof  thus  imposed  must  be  strong  and  satis- 
factory.3    Mere  proof  of  execution  of  the  will  is  not  sufficient.4 

The  fact  that  a  legatee  in  a  will  prepared  it,  however,  does  not 
in  all  cases  and  under  all  circumstances  create  a  presumption  that 
the  testator  did  not  know  of  or  assent  to  its  contents  and  compel 
the  adduction  of  additional  evidence  of  knowledge  and  consent.6 
The  rule  that  where  capacity  is  doubtful  there  must  be  proof  of 
instructions  applies  with  any  degree  of  stringency  only  where  the 
instrument  is  inofficious  and  obtained  from  parties  whom  it  pur- 
ports materially  to  benefit.6  And  a  will  in  accordance  with  pre- 
vious intentions  will  be  admitted  to  probate  though  prepared 
from  instructions  by  an  interested  party  and  not  read  to  the  tes- 
tator, and  though  made  in  favor  of  strangers.7  And  the  pre- 
sumption arising  where  a  stranger  prepares  a  will  under  which 
he  receives  a  large  legacy  does  not  apply  where  the  party  prepar- 
ing it  was  a  near  relative  who  would  have  inherited  a  large  por- 
tion of  the  estate  had  the  testator  died  intestate.8  Thus,  a  will 
signed  by  a  testatrix  in  the  presence  of  witnesses  is  entitled  to 
probate  though  she  was  aged  and  infirm  and  it  was  drawn  by  her 
nephew  who  was  her  medical  attendant  and  by  it  he  took  nearly 
all  her  property  and  he  alone  deposed  to  her  knowledge  of  the 

i  Yardley  v.  Cuthbertson,  108  Pa.  395,  56  Am.  Eep.  218. 

8  Caldwell  v.  Anderson,  104  Pa.  199;  Cuthbertson's  Appeal,  97  Pa.  163. 

3  McKnight  v.  Wright,  12  Kich.  L.  232;  McDaniel  v.  Crosby,  19  Ark. 
533;  Butlin  v.  Barry,  1  Curt.  Eccl.  Bep.  614;  Durnell  v.  Corfield,  8  Jur. 
915. 

4  McKnight  v.  Wright,  12  Bich.  L.  232. 

5  Cramer  v.  Crumbangh,  3  Md.  491;  Bonner  v.  Matthews,  cited  in  Shel- 
ford  on  Lunacy,  327. 

6  Brogden  v.  Brown,  2  Add.  Eccl.  Bep.  441. 
;  Goodacre  v.  Smith,  15  Week.  Bep.  561. 

8  Caldwell  v.  Anderson,  104  Pa.  199. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASKS. 


3G7 


contents.1  And  a  will  making  provisions  for  the  testator's  wife 
and  two  children,  one  of  whom  was  illegitimate,  made  upon  in- 
structions given  by  the  testator's  brother,  who  was  one  of  the 
executors,  will  be  held  valid  where  it  appears  that  the  brother 
had  done  all  in  his  power  for  the  benefit  of  the  illegitimate  child, 
though  the  evidence  as  to-  capability  and  knowledge  of  contents 
was  very  slight."' 

So,  evidence  that  power  had  been  exercised  over  a  testator  of 
weak  mind,  though  not  sufficiently  so  as  to  destroy  testamentary 
capacity,  by  a  party  standing  in  a  confidential  relation  to  him,  who 
receives  a  considerable  portion  of  his  estate,  raises  a  presumption 
of  fraud  which  requires  more  to  rebnt  it  than  mere  proof  of  the 
formal  execution  of  the  will  in  the  presence  of  witnesses.  There 
must  also  be  evidence  of  free  will,3  and  of  soundness  of  mind,4 
and  knowledge  of  the  contents.6  And  the  burden  rests  with  the 
party  seeking  to  sustain  an  unequal  will  executed  by  a  person 
weak  in  mind  and  body  at  the  house  of  the  person  most  largely 
benefited,  the  execution  of  which  was  not  communicated  to  his 
children  and  the  provisions  of  which  were  not  in  harmony  with 
his  previously  expressed  intentions,  to  show  that  precautions  were 
taken  and  explanations  made  so  as  to  secure  the  full  and  free  ac- 
tion of  his  faculties.6  No  definite  rule  as  to  the  amount  of  men- 
tal capacity  which  will  impose  the  duty  of  explanation  upon  a 
beneficiary  can  be  laid  down.7  But  very  strong  evidence  is  re- 
quired to  sustain  a  will  made  by  an  old  woman  who  had  been 
previously  judicially  found  to  be  a  lunatic  without  lucid  inter- 
vals, while  in  the  house  and  under  the  control  of  her  committee, 
giving  the  bulk  of  her  property  to  himself  and  wife.8  And  a 
will  of  an  elderly  woman  whose  mind  was  weak  but  not  imbecile 
or  idiotic,  in  favor  of  a  woman  with  whom  she  lodged  and 
boarded,  who  was  a  person  of  strong  understanding  and  impe- 

1  Keece  v.  Pressey,  2  Jur.  N.  S.  380. 

2  Ee  Field,  3  Curt.  Eccl.  Eep.  754. 

s  Boyd  v.  Boyd,  66  Pa.  283;  Breed  v.  Pratt,  18  Pick.  115. 
4  Morrison  v.  Smith,  3  Bradf.  209. 

6  Yardley  v.  Cuthbertson,  108  Pa.  395;  Breed  v.  Pratt,  18  Pick.  115. 
.  «  Mowry  v.  Silber,  2  Bradf.  133. 
'  Yardley  v.  Cuthbertson,  108  Pa.  395. 
8  Murdy's  Appeal,  23  W.  N.  C.  124;  Hazlitt's  WiU,  35  Pitts.  L.  J.  503. 


36S  MEDICAL    JURISPRUDENCE    OF   INSANITY. 

rions  disposition  and  had  gained  an  ascendency  over  her,  will  not 
be  admitted  to  probate  where  there  are  discrepancies  in  the  evi- 
dence respecting  its  execution.1  Xor  is  mere  evidence  of  the 
execution  of  a  will  and  codicil  by  a  person  of  weak  mind,  ap- 
pointing his  attorney  and  agent  sole  executor  and  making  him 
legatee  of  a  large  property,  and  instructions  therefor  given  to  the 
solicitor  by  his  father  who  was  also  the  testator's  attorney,  suffi- 
cient without  proof  of  instructions  by  the  testator  to  the  father.2 
And  probate  will  be  refused,  even  though  instructions  were 
given,  where  the  testator  was  in  a  very  weak  condition  of  mind, 
and  his  testamentary  dispositions  in  favor  of  his  wife  had  been 
varied  in  favor  of  a  person  who  had  acquired  influence  over  him 
and  expressed  an  intention  to  obtain  his  property.3 

The  mere  fact  that  a  testatrix's  legal  advisor  who  wrote  her 
will  was  made  her  executor,  however,  is  not  sufficient  to  cast  the 
burden  of  proving  testamentary  capacity  upon  the  proponent 
where  probate  is  applied  for  some  time  after  her  death.4  And 
where  proof  of  capacity,  volition,  and  free  agency  is  strong  and 
corroborated  by  the  testator's  affections,  declarations,  and  recog- 
nitions, the  fact  that  the  drawer  of  the  will  had  been  his  attorney 
and  the  existence  of  slight  discrepancies  in  the  evidence  as  to 
execution  are  not  material.5  Xor  will  the  fact  that  the  solicitor 
who  drew  the  will  took  a  considerable  legacy  to  the  exclusion  of 
an  only  son  invalidate  it,  where  the  persons  to  whom  the  testator 
gave  his  property  were  those  with  whom  he  had  associated  most 
of  his  life,  and  he  procured  the  preparation  of  the  will  himself, 
and  there  was  nothing  to  show  importunity.6  And  a  gift  to  a 
legal  adviser  of  one  eighth  of  the  testators  estate  and  the  residue 
in  trust  for  certain  relatives  is  not  sufficient  to  shift  the  burden 
of  proof  from  the  party  alleging  fraud  and  undue  influence.7  So, 
the  fact  that  the  beneficiaries  in  a  will  occupy  the  house  of  the  tes- 

1  Cockraft  v.  Eagles,  4  Notes  of  Cases,  237. 
s  Ingram  v.  Wyatfc,  1  Hagg.  EccL  Rep.  384. 
s  Darley  v.  Darley,  3  Bradf.  481. 
4  Linton's  Appeal,  104  Pa.  228. 
6  Bird  v.  Bird,  2  Hagg.  EccL  Eep.  142. 

6  Barry  v.  Butlin,  1  Curt.  EccL  Eep.  637;  Butlin  v.  Barry,  1  Curt.  EccL 
Eep.  614. 
■>  Stokes  v.  Miller,  10  W.  N.  C.  241. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  369 

tatrix  and  were  caring  for  her  and  nursing  her  in  her  illness  does 
not  make  their  relation  to  her  a  fiduciary  one  which  will  cast 
upon  them  the  burden  of  vindicating  her  will  against  the  imputa- 
tion that  it  was  procured  by  fraud  or  undue  influence.1 

Proof  of  knowledge  of  the  contents  of  a  will  and  of  intention 
may  be  made  either  by  the  subscribing  witnesses  or  other  persons.3 
And  proof  of  instructions  for  a  will  or  of  reading  it  over  to  the 
testator  is  not  indispensable,  as  knowledge  of  its  contents  may  be 
established  by  evidence  of  knowledge  and  assent  to  the  disposi- 
tions contained  in  it.3  The  nature  of  a  will  as  to  simplicity  or 
complexity  is  material  to  be  considered  on  the  question  of  the 
knowledge  of  the  testator  of  its  contents  where  his  capacity  is 
questioned  and  the  party  who  drew  it  takes  a  benefit  under  it* 
And  where  a  will  was  not  explained  to  the  testator,  and  the  mere 
reading  of  it  would  not  convey  to  a  man  in  his  physical  and  men- 
tal condition  and  with  his  limited  education  what  was  included 
within  its  comprehensive  terms,  it  will  be  held  invalid.5  And 
though  a  will  originally  valid  cannot  be  affected  by  subsequent 
instruments  short  of  an  express  revocation,  they  may  reflect  back 
upon  it,  where  the  testator's  capacity  was  questioned  and  the 
drawer  of  the  will  took  an  interest  under  it,  and  tend  to  elucidate 
the  question  whether  or  not  the  testator  knew  and  approved  of 
its  contents.6  Evidence  that  the  testator  intended  that  what  was 
left  after  three  annuities  in  his  will  were  provided  for  should  go 
to-  the  executors,  but  that  he  believed  this  to  be  a  small  amount 
when  in  reality  it  was  large,  is  not  sufficient  to  establish  knowl- 
edge on  his  part  of  the  contents  of  his  will  and  of  assent  to  its 
provisions.7 

§  43.    Unexecuted  and  nuncupative  wills. 

Wills  of  personalty  when  corresponding  to  long-entertained 
intentions  upon  the  part  of  a  testator  have  been  held  valid  as 

1  McMaster  v.  Scriven,  85  Wis.  162. 

2  Key  v.  Holloway,  7  Baxt.  576. 

3  McNinch  v.  Charles,  2  Kich.  L.  229. 

4  Durnell  v.  Corfield,  8  Jur.  915. 

6  Freeman  v.  Freeman,  19  Ont.  Eep.  141. 
«  Durnell  v.  Corfield,  8  Jur.  915. 
1  Durling  v.  Loveland,  2  Curt.  Eccl.  Rep.  225. 
24 


370  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

unexecuted  papers,  where  execution  was  delayed  for  want  of  wit- 
nesses or  otherwise  until  insanity  intervened.1  And  such  insanity 
will  not  reflect  back  on  previous  eccentricities  so  as  to  invalidate 
the  will.2  A  will  of  a  person  whose  physical  condition  was  such 
that  she  could  not  write  is  good  as  an  unexecuted  paper  where  it 
was  drawn  from  her  instructions  and  read  over  to  and  approved 
by  her.3  But  in  order  to  render  a  will  effectual  which  was  not 
signed  the  cause  which  prevented  the  signing  where  the  testator 
knew  how  to  write  must  have  been  a  physical  and  not  a  mental 
one.4  Unexecuted  instruments  changing  the  whole  plan  of  a  tes- 
tator's testamentary  dispositions  will  not  be  upheld  unless  it 
appears  that  the  change  of  intention  was  most  distinctly  ascer- 
tained so  that  there  could  be  no  doubt  of  his  meaning,  or  unless 
his  capacity  be  clearly  proved.5  So,  the  testamentary  capacity 
and  intent  of  a  testator  at  the  time  of  making  a  nuncupative  will 
must  appear  by  the  clearest  and  most  undisputable  testimony.6 
And  it  must  appear  that  it  contains  at  least  the  true  substance 
and  import  of  the  declarations  made  by  him.7  Where  a  will  is 
made  by  interrogatories  the  court  will  be  more  strict  in  requiring 
proof  of  volition  and  testamentary  capacity  than  in  an  ordinary 
case.8 

§  44.  Proof  of  lucid  intervals. 
The  evidence  in  support  of  an  allegation  of  a  lucid  interval 
after  derangement  should  be  as  strong  and  demonstrative  as  where 
the  object  of  the  proof  is  to  establish  derangement ; 9  and  should 
go  to  the  state  and  habit  of  the  person,  and  not  to  an  accidental 
interview  with  the  individual,  or  to  the  degree  of  self  possession 

1  Fulleck  v.  Allinson,  3  Hagg.  Eccl.  Eep.  527;  Hoby  v.  Hoby,  1  Hagg. 
Eccl.  Eep.  146. 

2  Hoby  v.  Hoby,  1  Hagg.  Eccl.  Eep.  146. 

3  Martin  v.  Wotton,  1  Lee,  Eccl.  Eep.  130. 

4  Jackson  v.  Moore,  14  La.  Ann.  209. 

6  Wood  v.  Wood,  1  Pkillim.  Eccl.  Eep.  357. 

6  Dorsey  v.  Sheppard,  12  Gill  &  J.  192;  Ee  TarnaU's  Will,  4  Eawle,  46^ 
Blewitt  v.  Blewitt,  4  Hagg.  Eccl.  Eep.  410. 

7  Ee  YarnaU's  WiU,  4  Eawle,  46. 

8  Dorsey  v.  Sheppard,  12  Gill  &  J.  192. 

9  Attorney  General  v.  Parntber,  3  Bro.  Cb.  441 ;    Pike  v.  Pike,  104  AK 
642;  Eicketts  v.  Joliff,  62  Miss.  441;  Hall  v.  Warren,  9  Ves.  Jr.  606. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  371 

demonstrated  in  a  particular  act.1  Stronger  proof  of  lucidity  is 
necessary  in  cases  of  general  insanity,  in  order  to  uphold  a  will, 
than  in  cases  of  insanity  of  a  fluctuating  or  temporary  character.2 
And  lucid  intervals  are  much  more  easily  proved  in  cases  of 
delirium  than  in  cases  of  fixed  mental  derangement  or  permanent 
mental  insanity.3 

The  nature  and  character  of  a  will  and  of  its  dispositions  have 
great  influence  in  determining  whether  or  not  it  was  executed 
during  a  lucid  interval.4  A  rational  act  rationally  done  is  the 
best  proof  of  a  lucid  interval.6  The  fact  that  a  will  made  by  a 
person  afflicted  with  insanity  having  intermissions  was  a  rational 
one  and  made  in  a  rational  manner  is  strong  evidence,  though  not 
conclusive.6  So,  a  will  written  by  a  lunatic  without  a  mistake 
and  in  a  natural  manner,  the  provisions  of  which  are  sensible, 
proper,  and  judicious,  shows  the  existence  of  a  lucid  interval  at 
the  time  it  was  written,7  imposing  upon  those  who  attack  it  the 
burden  of  proving  insanity  at  the  moment  it  was  made.6  And  a 
lucid  interval  is  established  by  proof  of  a  will  written  by  the  tes- 
tator which  was  proper  and  natural  and  conformable  to  his  affec- 
tions, and  which  was  subsequently  recognized  by  him  during  a 
lucid  interval,  though  he  was  at  times  so  violent  as  to  render  it 
necessary  to  tie  his  hands,9  as  well  as  by  the  fact  that  the  will 
corresponded  with  a  former  testamentary  instrument  made  while 
the  testator  was  unquestionably  sane,  and  with  the  state  of  his 
affections,10  or  with  declarations  as  to  his  intention  made  while 
sane.11     And  a  will  of  very  simple  contents,  which  is  rational  and 

1  Attorney  General  v.  Parnther,  3  Bro.  Ch.  441;  Bicketts  v.  Joliff,  62 
Miss.  441. 

2  Duffield  v.  Eobeson,  2  Harr.  (Del.)  375. 

3  Brogden  v.  Brown,  2  Add.  Eccl.  Bep.  441, 

4  Gombault  v.  Public  Administrator,  4  Bradf.  226. 

6  Cartwright  v.  Cartwright,  1  Phillim.  Eccl.  Bep.  90. 
6  Nichols  v.  Binns,  1  Swab.  &  T.  239. 

1  Be  Weir's  Will,  9  Dana,  434;  Cartwright  v.  Cartwright,  1  Phillim.  Eccl. 
Bep.  90. 

8  Kingsbury  v.  Whittaker,  2  La.  Ann.  1055,  36  Am.  Bep.  278;  Be  Bey's 
Succession,  46  La.  Ann.  773,  24  L.  B.  A.  577. 

9  Cartwright  v.  Cartwright,  1  Phillim.  Eccl.  Bep.  90. 

10  Dimes  v.  Dimes,  10  Moore,  P.  C.  422. 

11  Be  Coghlan,  cited  in  19  Ves.  Jr.  508. 


372  MEDICAL  JURISPRUDENCE   OF   INSANITY. 

natural  and  officious  under  the  circumstances  of  the  case,  may  be 
admitted  to  probate  as  having  been  made  during  a  lucid  interval, 
though  the  testator  had  been  confined  in  an  asylum  and  was  after- 
wards again  so  confined,  where  he  remained  until  his  death,  and 
he  was  afterwards  found  upon  inquisition  to  be  insane  without 
lucid  intervals  for  a  period  covering  the  olate  of  the  will.1  So, 
fluctuating  capacity  will  be  inferred  from  a  contradictory  opinion 
as  to  capacity,  particularly  where  the  facts  show  that  the  testator 
was  occasionally  capable.2  And  evidence  of  softening  of  the  brain 
of  a  testator,  which  finally  culminates  in  his  death  shortly  after 
the  execution  of  his  will,  and  of  severe  nervous  prostration  at 
times,  during  which  his  intellect  was  feeble  and  his  memory 
largely  gone,  does  not  negative  testamentary  capacity  where  there 
were  intervals  between  such  attacks  in  which  his  mind  was  rea- 
sonably clear,  during  one  of  which  the  will  was  executed,  and 
it  was  simple  and  reasonable  in  its  provisions.3  So,  consciousness 
and  admission  of  the  party  himself  that  he  has  been  disordered  in 
mind  are  among  the  strongest  proofs  of  re-established  faculties.4 
And  proof  that  a  will  was  made  during  a  lucid  interval  is  suffi- 
cient to  shift  the  burden  of  proof  to  the  contestants  to  show  tes- 
tamentary incapacity  at  the  time  of  execution,  though  the  testator 
had  been  found  a  lunatic  by  inquisition.5 

Infirmity  of  mind  after  derangement,  however,  is  evidence  tend- 
ing to  show  that  the  disorder  has  not  been  entirely  rooted  out.6 
And  the  will  of  a  person  who  had  been  insane,  but  who  for  the 
interval  of  a  month  acted  like  a  sane  man,  after  which  he  became 
depressed  as  to  his  religious  condition,  executed  during  that  time, 
will  be  held  invalid  where  the  attesting  witnesses  did  not  deem 
him  competent,  though  it  was  in  his  own  handwriting  and  per- 
fectly rational.7  So,  evidence  of  sanity  before  and  after  the  day 
on  which  a  will  is  made  by  a  testator  generally  insane  is  not  suffi- 
cient to  establish  a  lucid  interval  at  that  time.8     But  such  evi- 

1  Bannatyne  v.  Bannatyne,  16  Jur.  864,  14  Eng.  L.  &  Eq.  581. 

2  Williams  v.  Goude,  1  Hagg.  Eccl.  Kep.  577. 
*  Be  Silverthorn's  Will,  68  Wis.  372. 

4  Hoby  v.  Hoby,  1  Hagg.  Eccl.  Bep.  146. 

5  Mifflin  v.  Smedley,  3  Del.  Co.  Bep.  143. 

6  Attorney  General  v.  Parnther,  3  Bro.  Ch.  441. 

1  Symes  v.  Green,  5  Jur.  N.  S.  742,  1  Swab.  &  T.  401. 
6  Harden  v.  Hays,  9  Pa.  151. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES. 


373 


denee  in  connection  with  proof  that  there  were  no  irrational  signs 
at  the  time,  and  that  the  disposition  therein  made  was  in  harmony 
with  the  testator's  previous  declarations,  is  sufficient.'  And  proof 
of  calmness  on  the  part  of  a  testator,  and  of  his  transacting  mat- 
ters of  business  under  the  sanction  of  his  family,  is  not  sufficient 
to  rebut  the  presumption  against  his  will  arising  from  the  fact 
that  he  had  been  insane,  and  from  evidence  of  delusion  and  other 
indications  of  derangement  existing  shortly  before  the  will  was 
made.2 

§  45.  Revocation  of  wills. 
The  destruction  of  a  will  by  a  lunatic  testator  does  not  amount 
to  a  revocation  thereof,3  as  the  intent  with  which  he  does  it  is  but 
an  insane  intent  which  does  not  constitute  an  element  of  revoca- 
tion.4 And  its  contents  may  be  proved  in  the  same  manner  as 
other  facts  are  established.6  Thus,  a  will  duly  executed,  which 
was  torn  to  pieces  by  the  testator  while  delirious,  is  not  revoked 
but  may  be  carried  into  effect,  where  the  pieces  were  preserved, 
and  where  upon  recovery  and  learning  what  he  had  done  he 
determined  to  make  a  fresh  will  but  never  carried  out  his  inten- 
tions.6 And  an  unexecuted  draft  of  a  will  may  be  admitted  to 
probate  where  the  will  itself  was  destroyed  by  the  testator  while 
of  unsound  mind,  after  which  he  recovered  and  gave  directions 
for  the  preparation  of  auother  will  to  the  same  effect,  but  killed 
himself  before  its  completion.7  So,  a  will  partially  defaced  by  a 
testator  while  insane  will  be  probated  as  it  existed  in  its  integral 
state,  if  that  is  ascertainable.8  And  probate  of  a  will  in  its 
original  state  will  be  granted  where  an  alteration  had  been  made 
while  the  testator  was  of  unsound  mind.9     And  where  it  appears 

1  Gombault  v.  Public  Administrator,  4  Bradf .  226. 

2  Groom  v.  Thomas,  2  Hagg.  Eccl.  Rep.  433. 

3  Re  Lang's  Estate,  65  Cal.  19;  Forbing  v.  Weber,  99  Ind.  588;  Smith  v. 
Waite,  4  Barb.  28;  Re  Forman's  Will,  1  Tucker  (N.  Y.)  205;  Dominick  v. 
Dominick,  10  N.  Y.  S.  R.  32;  Ford  v.  Ford,  7  Humph.  92. 

Re  Lang's  Estate,  65  Cal.  19;  Smith  v.  Waite,  4  Barb.  28. 
6  Ford  v.  Ford,  7  Humph.  92. 
6  Brunt  v.  Brunt,  L.  R.  3  Prob.  &  Div.  37. 
1  Re  Downer,  1  Eccl.  &  Adm.  106,  26  Eng.  L.  &  Eq.  600. 
s  Scruby  v.  Fordham,  1  Add.  Eccl.  Rep.  74;  Borlase  v.  Borlase,  4  Notes 
of  Cases,  106. 

9  Re  Bicknell,  3  Add.  Eccl.  Rep.  231. 


374  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

that  a  testator  was  wanting  in  testamentary  capacity  at  the  time 
of  the  execution  of  the  will  which  revoked  a  preceding  one,  an 
issue  as  to  testamentary  capacity  at  the  time  of  the  execution 
of  the  preceding  will  should  be  awarded.1  Is  or  can  a  codicil  be 
regarded  as  effective  as  a  revocation  of  a  former  will  where  it  is 
void  as  an  affirmative  testamentary  disposition  because  of  insuffi- 
cient mental  capacity  of  the  testator.2  And  subsequent  revoca- 
tion of  a  will  made  while  the  testator  was  unquestionably  sane, 
without  any  evidence  of  a  change  of  purpose  or  of  any  ground 
for  a  change,  after  he  had  shown  signs  of  breaking  down  men- 
tally, may  be  attributed  to  mental  delusion.3 

One  who  is  mentally  incompetent  to  make  a  will  is  equally  so 
to  revoke  a  will  previously  made.4  The  revocation  of  a  will 
requires  the  same  degree  of  mental  capacity  as  is  required  to 
make  one.5  And  the  destruction  of  a  will  does  not  constitute  a 
revocation  unless  at  the  time  the  testator  had  capacity  to  under- 
stand the  nature  and  effect  of  the  act  and  perform  it  or  direct  its 
performance  freely  and  voluntarily  with  intent  to  effect  a  revoca- 
tion.6 But  a  testator  is  competent  to  revoke  his  will,  though  he 
was  weak  and  approaching  his  end  and  wandering  in  his  mind, 
where  he  was  easily  restored  to  his  normal  condition  and  under- 
stood the  disposition  the  law  would  make  in  the  absence  of  a  will, 
and  intended  to  adopt  it,  and  had  no  settled  and  irradicable  delu- 
sions and  no  antipathy  toward  any  legatee  or  beneficiary  and  no 
delusion  touching  the  subject  of  any  testamentary  matter.7  The 
rationality  of  a  testator  at  the  time  of  defacing  his  will  is  to  be 
inferred  from  the  rationality  of  his  act,  where  there  is  nothing  to 
evidence  it  aliunde.6  And  a  will  produced  for  probate  with  the 
signature  of  the  testator  torn  off  as  if  with  a  set  purpose  and 
deliberation  raises  a  presumption  that  it  was  purposely  revoked, 

1  Ee  Thomas's  Estate,  20  W.  N.  C.  336. 
3  Delafield  v.  Parish,  25  N.  Y.  9. 

3  Miller  v.  White,  5  Eedf.  321. 

4  Smith  v.  Waite,  4  Barb.  28. 

6  Allison  v.  Allison,  7  Dana,  94;  Mclntire  v.  Worthington,  68  Mel.  203. 
6  Rhodes  v.  Vinson,  9  Gill,  169,  52  Am.  Dec.  685;  Re  Forinan's  Will,  5i 
Barb.  279,  1  Tucker  (N.  T.)  205. 

:  Re  Jones,  2  Ohio  Dec.  409.     And  see  Laing  v.  Bruce,  1  Dunlop,  59. 
8  Scruby  v.  Fordham,  1  Add.  Eccl.  Rep.  74. 


LEGAL   ADJUDICATIONS    IN    CIVIL   CASES.  375 

and  that  he  had  capacity  to  revoke  it  at  the  time.1  But  where  a 
will  is  found  to  have  been  drawn  by  the  testator,  and  it  was  in 
his  custody  at  a  time  when  he  was  of  unsound  mind  as  well  as 
of  sound  mind  the  burden  of  showing  that  it  was  not  done  after 
he  became  insane  and  therefore  that  it  amounted  to  a  revocation, 
rests  with  the  party  asserting  such  revocation.3  A  commission 
of  lunacy  against  a  testator  does  not  work  a  revocation  of  a  will 
made  when  he  was  of  sound  mind.3  But  whatever  a  testator  who 
has  since  been  impeached  as  insane  may  do  in  the  way  of  the 
destruction  or  cancelation  of  his  will  the  presumption  of  revoca- 
tion does  not  follow,  and  the  burden  of  showing  it  would  rest 
with  the  party  claiming  a  revocation  to  prove  a  lucid  interval/ 

VI.    Gifts. 

§  1.  Inter  vivos. 
The  degree  of  capacity  necessary  to  make  a  valid  gift  is  the 
same  as  that  required  to  make  a  contract  or  deed.6  A  higher 
degree  of  capacity  is  required  than  that  necessary  for  the  making 
of  a  valid  will.6  One  who  is  conscious  of  his  acts  and  under- 
stands their  nature  and  effect  is  mentally  competent  to  make  a 
gift.7  And  a  gift  by  a  father  to  a  son  who.  had  occasionally  per- 
formed services  for  him  without  charge  is  valid  if  made  while 
the  donor  had  sufficient  mental  capacity  to  understand  the  trans- 
action, though  he  had  not  sufficient  capacity  to  transact  business 
generally,8  and  though  he  was  insane  shortly  before  and  after- 
wards from  the  violence  of  the  disease.9  And  the  fact  that  a 
donor  was  in  a  declining  state  of  health  and  his  understanding 
greatly  weakened  does  not  necessarily  imply  an  absence  of 
sufficient  capacity  to  dispose  of  his  property  by  gift ; I0  though  a 

1  Ee  Jones,  2  Ohio  Dec.  4(J9. 

s  Harris  v.  Berrall,  1  Swab.  &  T.  153. 

3  Hughes  v.  Hughes,  2  Munf.  209. 

4  Ee  Jones,  2  Ohio  Dec.  409. 

6  Crum  v.  Thornley,  47  HI.  192. 

6  Lemon  v.  Jenkins,  48  Ga.  313.     And  see  Clarke  v.   Sawyer,  3  Sandf. 
Ch.  351. 
1  Eichardson  v.  Smart,  2  Mo.  App.  Eep.  1107. 

8  Van  Deusen  v.  Eowley,  8  N.  Y.  358. 

9  Eichardson  v.  Smart,  2  Mo.  App.  Eep.  1107. 

10  Ealston  v.  Turpin,  129  U.  S.  663.  32  L.  ed.  747. 


376  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

voluntary  conveyance  by  a  person  of  weak  understanding  may  be 
avoided  though  he  is  not  a  lunatic.1  Prior  idiocy  or  imbecility, 
however,  need  not  be  shown  to  invalidate  a  gift ;  it  is  sufficient 
that  the  donor  was  laboring  under  a  delusion  out  of  which  he  could 
uot  be  reasoned,  and  which  led  him  to  make  it,  and  which  so  took 
possession  of  his  mind  that  he  could  not  act  reasonably  upon  the 
subject.2  And  a  conveyance  by  a  grantor  of  advanced  age  to  his 
son-in-law  of  all  his  property  to  the  exclusion  of  his  children  who 
were  needy  and  worthy,  in  consideration  of  the  agreement  of  the 
son-in-law  to  take  care  of  him  and  his  wife  for  life,  will  be  set 
aside  after  his  death,  where  the  evidence  as  to  his  mental  capacity 
was  conflicting  and  the  rental  of  the  property  was  sufficient  to 
pay  the  expenses  of  such  keeping,  the  unreasonableness  of  the 
transaction  being  decisive.3  So,  where  a  gift  from  a  principal 
to  an  agent  is  impeached  on  the  ground  of  weakness  of  inind> 
fraud,  and  undue  influence,  it  should  be  made  to  appear,  in  order 
to  support  it,  that  the  confidence  of  the  donor  had  not  been 
abused,  and  that  it  was  made  freely  and  knowingly.4  And  a  gift 
by  a  person  of  weak  intellect,  of  her  whole  fortune  to  one  who 
had  acquired  great  influence  over  her  by  making  her  believe  that 
he  sustained  a  supernatural  character,  is  invalid  and  will  be 
set  aside.5  A  deed  or  gift  subject  to  the  power  of  appointment 
by  the  donor  from  an  elderly  person,  however,  to  a  confidential 
agent  without  the  intervention. of  a  disinterested  third  person, 
the  solicitor  drawing  the  deed  being  the  solicitor  of  the  person 
taking  the  benefit  under  it,  is  valid,  and  will  be  upheld,  where 
the  circumstances  did  not  indicate  undue  influence  exerted  over 
a  person  of  insufficient  understanding.6 

§  2.   Of  a  testamentary  cha/racter. 
A  disposition  of  property  in  anticipation    of   death  by  ante 
mortem  transfers,  is  governed  by  the  same  tests  of  mental  capa- 
city as  a  disposition  thereof  by  will.7     The  vital  question  as  to 

1  See  White  v.  Small,  2  Ch.  Cas.  103. 

2  Biggs  v.  American  Tract  Society,  95  N.  Y.  503. 

3  Bressy  v.  Gross  (Ky.)  7  S.  W.  150. 

4  Parris  v.  Cobb,  5  Rich.  Eq.  450. 

5  Nottidge  y.  Prince,  2  Giff.  246. 

6  Hunter  v.  Atkins,  3  Myl.  &  K  113. 

•  Young  v.  Otto,  57  Minn.  307;  Grear  v.  Grear,  9  Gratt.  330.     And  see 
Dinges  v.  Branson,  14  "W.  Ta.  100. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES. 


377 


the  validity  of  a  gift  made  within  a  few  days  before  the  donor's 
death  is  not  what  he  contemplated  or  intended,  but  whether  his 
intentions  were  carried  into  effect,  and  an  intelligent  will  direct- 
ing or  assenting  to  the  act  done  is  essential.'  The  rule  of  testa- 
mentary capacity,  that  the  testator  must  have  a  fair  appreciation 
of  the  nature  of  the  act,  of  the  property  he  has,  and  of  what  he 
wishes  to  do  with  it,  applies  substantially  in  cases  of  a  gift  during 
life  of  a  not  clearly  undue  portion  of  the  donor's  estate  to  a 
natural  object  of  his  bounty.2  And  a  deed  by  a  parent  to  a  child 
as  a  gift  will  not  be  set  aside  because  it  constitutes  an  unequal 
distribution  of  his  property  unless  incapacity  is  shown  or  some 
imposition  practised  or  confidence  abused  or  undue  influence 
appears.3  Nor  is  evidence  that  a  father,  believing  that  his  son 
had  wronged  him,  attempted  to  kill  him,  after  which  he  inflicted 
a  mortal  wound  upon  himself  and  expressed  regret  that  he  did 
not  accomplish  his  purpose,  and  gave  a  package  of  bonds  to  a 
favorite  daughter-in-law,  thus  departing  from  a  previously  declared 
intention  as  to  their  disposition,  sufficient  to  establish  insanity 
which  will  defeat  the  gift.4  And  a  gift  by  a  mother  to  a  son  is 
not  invalidated,  where  she  was  possessed  of  all  her  faculties,  by 
the  mere  fact  that  she  was  advanced  in  years  and  did  not  have 
independent  advice.5  And  the  fact  that  an  aged  man  who  made  a 
deed  to  one  of  his  heirs  to  the  exclusion  of  others  manifested 
prudence  and  judgment  in  determining  the  best  mode  of  having 
the  conveyance  take  effect  after  his  death  gives  rise  to  a  presump- 
tion that  he  was  not  incapacitated  to  execute  the  instrument.6 
So,  evidence  of  extreme  old  age  and  loss  of  memory  and  garru- 
lousness  will  not  affect  a  gift  made  to  a  son  with  whom  the  donor 
had  lived  for  many  years,  where  he  attended  to  his  own  affairs  at 
the  time,  and  could  write  a  complicated  receipt,  and  was  never 
irrational,  and  the  gifts  were  apparently  voluntary.7  And  decla- 
rations of  a  grantor  while  of  sound  mind  as  to  his  intentions  eon- 

1  Duncombe  v.  Bichards,  46  Mich.  166. 

2  Elcessor  v.  Elcessor,  146  Pa.  359.     And  see  Grear  v.  Grear,  9  Gratt. 
330. 

3  Moore  v.  Moore,  67  Mo.  192. 

4  Crum  v.  Thornley,  47  El.  192. 

5  Soberanes  v.  Soberanes,  97  Cal.  140. 

6  Clearwater  v.  Binder,  43  111.  272. 
1  Ee  Allison,  35  N.  Y.  S.  E.  323. 


378  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

cerning  the  disposal  of  certain  property,  made  before  sickness 
which  is  claimed  to  have  resulted  in  unsoundness  of  mind,  do  not 
of  themselves  tend  to  prove  that  he  was  insane  at  the  time  of 
making  a  subsequent  deed  to  others.1  Gifts  causa  mortis,  how- 
ever, like  wills,  are  usually  made  when  the  situation  of  the  donor 
renders  him  particularly  susceptible  to  undue  influence,  and  should 
be  closely  scrutinized  and  set  aside  in  every  case  of  doubt  as  to 
capacity  and  volition.2  A  finding  that  a  grantor  was  of  sound 
mind  up  to  within  three  days  of  the  making  of  a  gift,  and  from 
that  time  on  his  mind  was  unsound,  will  be  set  aside  as  against 
the  evidence  where  it  consisted  of  statements  as  to  characteristics 
exhibited  continuously  for  at  least  three  months  prior  to  the  date 
of  the  commencement  of  insanity  as  it  specified  in  the  finding.3 
So,  where  at  the  time  of  a  gift  the  donor's  mind  was  enfeebled 
by  age  and  disease,  though  not  to  the  extent  of  producing  mental 
unsoundness,  and  he  acted  without  independent  and  disinterested 
advice,  the  gift  being  a  large  portion  of  his  estate  and  operating 
to  deprive  those  having  a  natural  claim  on  his  bounty  of  all  bene- 
fit therefrom,  a  jury  is  authorized  to  find  the  gift  void  from  undue 
influence.4  And  one  who  takes  a  voluntary  conveyance  from  an 
aged  and  infirm  person,  whether  the  relation  existing  between 
them  is  confidential  or  not,  or  that  of  consanguinity  or  otherwise, 
is  bound  to  make  it  satisfactorily  appear  that  the  grantor  fully 
understood  the  character,  nature,  and  effect  of  his  act.5  And  a 
deed  in  the  nature  of  a  testamentary  disposition,  purporting  to 
have  been  signed  by  the  grantor  by  his  mark  when  he  was  in  his 
ninetieth  year,  partly  deaf  and  nearly  blind  and  helpless,  which 
was  drawn  in  the  handwriting  of  the  husband  of  the  grantee  and 
witnessed  only  by  her  son,  requires  for  its  support  something 
more  than  proof  by  the  subscribing  witnesses  that  he  saw  it  exe- 
cuted.6 So,  a  transfer  of  a  large  amount  of  property  without  con- 
sideration by  an  aged  widow  to  one  who  claims  to  be  a  spiritual 

1  Howe  v.  Howe,  99  Mass.  88. 

2  Duncornbe  v.  Richards,  46  Mich.  166;  Ellis  v.  Secor,  31  Mich.  185,  18 
Am  Eep.  178;  Thorp  v.  Amos,  1  Sandf.  Ch.  26;  Shirley  v.  Whitehead,  1 
Iced.  Eq.  130. 

3  Field  v.  Shorb,  99  Cal.  661. 

4  Woodbury  v.  Woodbury,  141  Mass.  330,  55  Am.  Eep.  479. 
6  Jones  v.  Thompson,  5  Del.  Ch.  374. 

6  Lansing  v.  Eussell,  13  Barb.  521. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  379 

medium,  the  widow  believing  that  she  was  fulfilling  the  wishes 
of  her  deceased  husband  conveyed  to  her  through  such  medium, 
to  adopt  him  as  her  son  and  make  the  transfer,  will  be  set  aside 
in  the  absence  of  proof  that  it  was  the  voluntary  and  well-consid- 
ered act  of  her  own  free  will.1  And  a  deed  made  by  a  man 
eighty-two  years  of  age,  a  few  days  after  an  accident  resulting  in 
the  death  of  his  wife,  to  one  for  whom  he  had  no  peculiar  or 
excessive  affection,  without  consideration,  should  be  set  aside  as 
the  probable  result  of  weakness  of  mind  and  undue  influence.2 

YIL  Partnership — what  insanity  warrants  dissolution. 

The  lunacy  of  a  partner  as  a  ground  for  dissolution  of  the  part- 
nership depends  upon  the  degree  and  probable  duration  of  the 
•disorder  as  affecting  his  capacity  to  fulfil  his  contract.3  A  part- 
nership will  be  dissolved  in  equity  where  a  partner  becomes  so 
disordered  in  mind  as  to  be  incapable  of  conducting  the  partner- 
ship business  according  to  the  terms  of  the  copartnership  agree- 
ment.4 Permanent,  confirmed,  and  incurable  insanity  of  a  part- 
ner is  a  ground  for  dissolution  of  the  partnership,6  at  the  instance 
of  the  lunatic,  as  well  as  that  of  the  other  partner.8  And  where 
incapacity  has  continued  for  eighteen  months,  and  the  evidence 
shows  reasonable  ground  for  supposing  recovery  to  be  hopeless, 
or  at  least  improbable,  during  the  remainder  of  the  term  for 
which  the  partnership  is  to  continue,  an  application  for  dissolu- 
tion is  proper.7  So,  a  partnership,  by  the  articles  of  which  it  was 
stipulated  that  in  the  event  of  lunacy  obliging  a  partner  to  quit 
India  for  more  than  a  year  a  dissolution  should  be  had,  may  be 
dissolved  where  a  partner  becomes  an  incurable  lunatic  on  his 
way  to  India,  and  is  sent  back.8  But  courts  of  equity  will,  as 
between  partners,  upon  application  for  a  dissolution  on  the 
ground  of  the  insanity  of  the  partner,  look  to  the  effect  produced 
upon  the  partnership  business,  and  refuse  to  determine  it  unless 

1  Lynn  v.  Home,  L.  E.  6  Eq.  655. 

2  Masick  v.  Fisher,  16  Ky.  L.  Kep.  277. 

3  Waters  v.  Taylor,  2  Ves.  &  B.  299. 

*  Sayer  v.  Bennett,  1  Cox,  Ch.  107. 

6  Sadley  v.  Lee,  6  Beav.  324;  Jones  v.  Lloyd,  L.  E.  18  Eq.  265. 
6  Jones  v.  Lloyd,  L.  R.  18  Eq.  265. 
i  Leaf  v.  Coles,  1  DeG.  M.  &  G.  175. 

*  Bagshaw  v.  Parker,  10  Beav.  532. 


380  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

the  insanity  materially  affects  the  capacity  of  the  partner  to  dis- 
charge the  duties  imposed  by  the  relation.1  And  as  a  bill  there- 
for procee'ds  upon  the  principle  that  the  insane  partner  is  incapa- 
ble of  receiving  notice  of  dissolution,  strict  evidence  of  insanity, 
and  not  mere  incapability,  is  required.2  And  mere  temporary 
or  curable  disorder  of  the  mind  on  the  part  of  a  partner  is  not 
sufficient  to  warrant  a  dissolution,3  where  there  is  a  fair  prospect 
of  recovery  within  a  reasonable  time.4  Where  upon  the  insanity 
of  a  partner  the  other  continues  the  business  precisely  as  before 
without  objection,  it  will  be  presumed  that  he  did  not  intend  a 
dissolution,  but  that  he  waited  to  determine  whether  the  incapaci- 
ty would  prove  permanent  or  temporary.5  And  the  fact  that 
the  conduct  and  state  of  mind  of  a  partner  were  such  as  to  de- 
stroy the  confidence  of  the  other  partners,  and  to  induce  custom- 
ers to  withdraw  their  custom  from  the  firm,  and  that  the  malady 
under  which  he  labored  had  led  him  to  attempt  suicide  and  might 
lead  him  to  attempt  the  life  of  one  of  his  partners,  is  not  suffi- 
cient to  warrant  the  court  in  enjoining  him  from  interfering  with 
the  partnership  affairs.6  So,  strong  evidence  would  be  required  to 
establish  the  conclusion  that  a  person  ostensibly  taking  an  active 
part  in  the  conduct  of  the  partnership  would  be  held  irresponsi- 
ble with  respect  to  acts  of  a  partner  on  the  ground  of  his  insan- 
ity,7 and  insanity  which  will  sustain  an  inquisition  and  the  ap- 
pointment of  a  conservator  and  a  commitment  to  an  insane 
asylum  will  not  authorize  the  dissolution  of  a  partnership,8  such 
an  adjudication  having  the  effect  only  of  establishing  his  insan- 
ity.9 And  no  dissolution  will  be  made  on  the  ground  of  the  in- 
sanity of  a  partner  without  inquiry  as  to  the  state  of  his  mind  at 
the  time  the  relief  is  sought,10  the  affirmative  of  the  issue  resting 

1  Raymond  v.  Vaughn,  128  HI.  256,  4L.  E.  A.  440. 
-  Kirby  v.  Carr,  3  Tounge  <fc  C.  135. 

3  Raymond  v.  Vaughn,  128  HI.  256,  4  L.  E.  A.  440;  Pearce  v.  Chamber- 
lain, 2  Yes.  Sr.  33;  Leaf  v.  Coles,  1  DeG.  AT.  &  G.  175. 

4  Raymond  v.  Vaughn,  128  El.  256,  4  L.  R.  A.  440. 

5  Raymond  v.  Vaughn,  128  EL  267,  4  L.  R.  A.  444. 

6  Anonymous,  2  Kay  &  J.  441. 
:  Sadley  v.  Lee,  6  Beav.  324. 

8  Raymond  v.  Vaughn,  128  El.  256,  4  L.  R.  A.  440. 

9  Raymond  v.  Vaughn,  128  El.  256,  4  L.  R.  A.  440;  Raymond  v.  Vaughn^ 
17  El.  App.  144.     See  Milne  v.  Bartlett,  3  Jur.  358. 

10  Ogilvy  v.  Gregory,  4  Week.  Rep.  221;  Anonymous,  2  Kay  &  J.  441. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  381 

"with  the  partner  who  had  been  previously  insane.1  And  a  part- 
ner will  not  be  enjoined  from  interfering  with  the  partnership 
business  in  the  absence  of  evidence  of  incompetency  at  the  time, 
though  some  months  previous  he  had  been  habitually  insane.2 

VIII.  Agency. 

An  agency  not  coupled  with  an  interest  is  revoked  by  the  in- 
sanity of  the  principal  rendering  him  incapable  of  contracting.3 
When  any  act  of  Providence  deprives  the  principal  of  the  power 
to  exercise  judgment  or  will  on  the  subject,  the  authority  of  the 
agent  to  act  is  thereby  suspended  for  the  time  being,4  especially 
where  the  statute  requires  that  an  insane  person  shall  be  repre- 
sented by  his  guardian  in  all  transactions  concerning  his  estate." 
Though  where  he  recovers  and  manifests  no  will  to  terminate  the 
authority  it  may  be  considered  as  a  mere  suspension,  and  his 
assent  to  acts  done  during  the  suspension  may  be  inferred  from 
his  forbearance  to  express  dissent  when  they  came  to  his  knowl- 
edge.6 It  has  been  held,  however,  that  an  inquisition  of  lunacy 
is  the  only  evidence  of  insanity  which  can  be  admitted  to  termi- 
nate an  agency.7  But  whether  the  fact  of  insanity  is  formally 
established  or  not  the  agent  cannot  justify  or  support  an  act 
under  the  authority  originally  given,  done  after  he  had  knowl- 
edge of  the  incapacity  of  his  principal.8  And  the  fact  that  the 
principal  was  put  under  guardianship  as  insane  does  not  warrant 
the  court  in  holding  that  an  agency  previously  created  was 
thereby  terminated  where  it  does  not  appear  that  the  insanity 
was  such  as  to  disqualify  him  from  entering  into  a  valid  con- 
tract.9 

1  Anonymous,  2  Kay  &  J.  441. 

8  Ogilvy  v.  Gregory,  4  Week.  Eep.  221. 

3  Blake  v.  Garwood,  42  N.  J.  Eq.  276;  Matthiessen  &  W.  Eef.  Co.  v.  Mc- 
Mahon,  38  N.  J.  L.  53d;  Hill  v.  Day,  34  N.  J.  Eq.  154;  Motley  v.  Head, 
43  Vt.  633;  Drew  v.  Nunn,  40  L.  T.  N.  S.  676. 

4  Davis  v.  Lane,  10  N.  H.  156. 

5  Keniro  v.  Waco  (Tex.)  33  S.  W.  766. 

6  Davis  v.  Lane,  10  N.  H.  156. 

7  Wallace  v.  Manhattan  Co.  2  Hall  (N.  Y.)  495. 
£  Bunce  v.  Gallagher,  5  Blatchf.  48J. 

9  Motley  v.  Head,  43  Vt.  633. 


382  MEDICAL    JURISPRUDENCE    OF   INSANITY. 

IX.  Public  office. 

Persons  who  are  actually  insane  or  idiotic  would  probably  be 
deemed  ineligible  to  hold  public  office,  even  in  the  absence  of 
statutory  provisions  on  the  subject.1  But  they  are  made  ineligi- 
ble by  statute  in  most  of  the  states.  Such  provisions,  however, 
do  not  exclude  persons  whose  minds  are  merely  enfeebled  by  age 
■or  disease.2  !Nor  is  a  person  who  labors  under  hallucinations  or 
delusions  excluded  where  they  do  not  relate  to  political  matters 
and  do  not  go  to  the  extent  of  incapacitating  him  for  the  trans- 
action of  ordinary  business.3  So,  the  fact  that  an  administrator 
was  sent  to  an  insane  asylum  does  not  create  an  absolute  vacancy  in 
the  administratorship  so  that  another  who  had  renounced  his  right 
to  administer  in  the  former's  favor  can  retract  the  renunciation.4 

X.  Marriage. 

§  1.  What  incapacity  affects. 

Marriage  is  a  civil  union  depending  upon  contract  express  or 
implied  and  requiring  the  exercise  of  reason  which  a  person  of 
unsound  mind  is  incapable  of  exercising5.  And  a  marriage  by  an 
insane  person  is  a  nullity  because  of  the  inability  of  such  person 
to  assent ; 6  and  the  rule  is  the  same  though  the  insanity  is  tem- 
porary.7 And  the  performance  of  a  marriage  ceremony  between 
i  person  deprived  of  reason  at  the  time,  and  another,  and  their 
continued  cohabitation  until  death,  do  not  constitute  a  legal  mar- 

■  See  Sinks  v.  Beese,  19  Ohio  St.  306,  2  Am.  Kep.  397. 

2  Sinks  v.  Eeese,  19  Ohio  St.  306,  2  Am.  Rep.  397. 

3  Clark  v.  Eobinson,  88  111.  498. 

4  Ee  Moore's  Estate,  68  Cal.  281. 

5  Jenkins  v.  Jenkins,  2  Dana,  103,  26  Am.  Dec.  437;  Cole  v.  Cole,  5 
Sneed,  57,  70  Am.  Dec.  275.  And  see  Crump  v.  Morgan,  3  lied.  Eq.  91, 
40  Am.  Dec.  447. 

6  Jenkins  v.  Jenkins,  2  Dana,  103,  26  Am.  Dec.  437;  Powell  v.  Powell,  18 
Kan.  371,  26  Am.  Eep.  774;  Eawdon  v.  Eawdon,  28  Ala.  565;  Unity  v.  Bel- 
grade, 76  Me.  419;  Fornshill  v.  Murray,  1  Bland,  Ch.479;  Smith  v.  Smith, 
47  Miss.  211;  Waymire  v.  Jetmore,  22  Ohio  St.  271;  Johnson  v.  Kincade, 
2  lred.  Eq.  470;  Cole  v.  Cole,  5  Sneed,  57,  70  Am.  Dec.  275;  Ward  v.  Du- 
laney,  23  Miss.  410;  Christy  v.  Clarke,  45  Barb.  529;  Turner  v.  Meyers,  1 
Hagg.  Consist.  Eep.  414;  Browning  v.  Eeane,  2  Phillim.  Eccl.  Eep.  69. 
And  see  Keyes  v.  Keyes,  22  N.  H.  553;  Clement  v.  Mattison,  3  Eich.  L.  93. 

7  Parker  v.  Parker,  2  Lee,  Eccl.  Eep.  382;  Legeyt  v.  O'Brien,  Millw.  325. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  383 

riage  or  give  claim  to  dower  or  curtesy  in  his  or  her  estate.1 
Though  it  lias  been  held  that  a  marriage  may  be  ratified  after 
recovery.2  Nor  will  administration  of  the  effects  of  a  deceased 
woman  be  granted  to  a  man  who  married  her  where  the  marriage 
was  null  and  void  on  the  ground  of  her  mental  imbecility.3  A 
marriage  contracted  by  one  who  had  been  found  to  be  a  lunatic, 
during  a  lucid  interval,  however,  is  binding  on  him  where  the 
proof  of  the  existence  of  the  lucid  interval  is  clear.4  And  the 
fact  that  a  woman  had  been  of  unsound  mind  and  confined  in  a 
lunatic  asylum  would  not  justify  a  breach  of  promise  of  marriage 
where  she  was  of  sound  mind  at  the  time  of  the  promise.5  Under 
the  Mississippi  statute  neither  insanity  nor  idiocy  of  a  party  to  a 
marriage  at  the  time  is  a  sufficient  ground  for  its  dissolution, 
unless  the  other  party  was  ignorant  of  such  disability  at  the  time 
of  the  marriage.6  And  by  the  common  law  an  idiot  might  con- 
tract marriage,  and  a  marriage  by  an  idiot  or  lunatic  was  con- 
sidered valid.7 

§  2.  Tests. 
By  some  of  the  authorities  the  term  "  unsound  mind,"  as  used 
to  express  the  degree  of  insanity  which  will  invalidate  a  marriage, 
is  synonymous  with  non  compos  mentis,  embracing  a  total  depri- 
vation of  reason,8  accompanying  idiocy,  lunacy,  or  adventitious 
madness,  either  temporary  or  permanent,  remedial  or  irremedial.9 
And  imbecility  of  mind  is  not  sufficient  ground  for  a  decree  of 
nullity  unless  it  amounts  to  idiocy  or  insanity.10     On  the  other 

1  Jenkins  v.  Jenkins,  2  Dana,  103,  26  Am.  Dec.  437;  "Wiser  v.  Lockwood, 
42  Vt.  720;  Smart  v.  Taylor,  9  Mod.  98;  Ee  Turing,  1  Ves.  &  B.  140. 

2  Prine  v.  Prine,  36  Fla.  676,  34  L.  B.  A.  87;  Cole  v.  Cole,  5  Sneed,  57. 
And  see  Brown  v.  Westbrook,  27  Ga.  102;  Secor  v.  Secor,  1  McArth.  630; 
Wightman  v.Wightman,  4  Johns.  Ch.  343;  Stuckey  v.  Mathes,  24  Hun,  461. 

3  Browning  v.  Beane,  2  Phillim.  Eccl.  Bep.  68.  But  see  Parker  v.  Parker, 
2  Lee,  Eccl.  Bep.  383. 

4  Be  Gangwere's  Estate,  14  Pa.  417,  53  Am.  Dec.  554;  Turner  v.  Meyers, 
1  Hagg.  Consist.  Bep.  414;  McAdam  v.  Walker,  1  Dow,  P.  C.  148. 

6  Baker  v.  Cartwright,  10  C.  B.  N.  S.  124. 
6  Smith  v.  Smith,  47  Miss.  211. 
'  Park  v.  Barron,  20  Ga.  702. 

8  Jenkins  v.  Jenkins,  2  Dana,  103,  26  Am.  Dec.  437;  Foster  v.  Means,  1 
Speer,  Eq.  569,  42  Am.  Dec.  332. 

9  Jenkins  v.  Jenkins,  2  Dana,  103,  26  Am.  Dec.  437. 
10  Elzey  v.  Elzey,  1  Houst.  (Del.)  308. 


384  MEDICAL    JURISPRUDENCE    OF   INSANITY. 

hand,  it  has  been  held  that  the  question  to  be  considered  is 
■whether  the  mind  of  the  party  was  diseased  or  not  at  the  time  of 
the  contract,  and  if  the  evidence  shows  that  it  was  diseased  the 
court  will  not  consider  the  extent  of  the  derangement.1  So,  the 
test  of  capacity  to  contract  has  been  frequently  applied  to  mar- 
riage, the  rule  adopted  being  that  to  justify  a  decree  of  nullity 
of  a  marriage  there  must  have  been  such  insanity  or  imbecility  as 
would  justify  a  jury  in  a  civil  action  in  finding  the  party  incapa- 
ble of  making  a  contract,2  the  rule  being  that  one  who  was  so  void 
■of  understanding  as  to  be  incapable  of  making  a  valid  contract  can- 
not contract  marriage,3  and  that  one  who  is  competent  to  contract 
in  law  will  be  presumed  to  have  sufficient  mental  capacity  to  con- 
tract a  valid  marriage.4  The  rule  best  supported  by  authority, 
and  probably  by  reason,  however,  refers  the  test  of  capacity  to 
the  particular  act  in  question,  making  the  capacity  to  understand 
the  marriage  contract  the  test  as  to  its  validity,3  under  which  a 
marriage  contract  can  only  be  declared  void  on  the  ground  of 
insanity  or  such  want  of  understanding  as  renders  the  party  inca- 
pable of  assenting  thereto.6  And  one  who  contracts  marriage 
should  be  held  bound  thereby  when  he  had  an  appreciation  of  the 
condition  of  the  marriage  state  and  understood  the  rights  and 
responsibilities  which  attach  to  it,  and  regarded  the  marriage  cere- 
mony as  the  incident  which  effected  the  marriage,  though  he  was 
of  weak  mind.7  And  an  instruction  that  the  same  rule  would 
apply  to  the  contract  of  marriage  as  applies  to  other  contracts  is 
erroneous.8      The  question  for  determination  is  not  whether  or 

1  Hancock  v.  Peaty,  L.  E.  1  Prob.  &  Div.  335. 

2  Anonymous,  4  Pick.  32;  Atkinson  v.  Medford,  46  Me.  510.  And  see 
•Cole  v.  Cole,  5  Sneed,  57,  70  Am.  Dec.  275. 

3  Middleborough  v.  Rochester,  12  Mass.  363;  Bell  v.  Bennett,  73  Ga.  781. 
But  see  Ex  parte  Glen,  4  Desauss.  Eq.  546. 

4  Powell  v.  Powell,  26  Miss.  783;  Atkinson  v.  Medford,  46  Me.  510. 

5  St.  George  v.  Biddeford,  76  Me.  593;  True  v.  Raney,  21  N.  H.  52; 
Baughnian  v.  Baughman,  32  Kan.  538;  Doe  v.  Roe,  1  Edm.  Sel.  Cas.  344; 
Kern  v.  Kern,  51  N.  J.  Eq.  574;  Browning  v.  Reane,  2  Phillim.  Eccl.  Rep. 
69;  Durham  v.  Durham,  L.  R.  10  Prob.  &  Div.  80;  Cannon  v.  Smalley,  L. 
R.  10  Prob.  &  Div.  96;   Hunter  v.  Edney,  L.  R.  10  Prob.  &  Div.  93. 

6  Lewis  v.  Lewis,  44  Minn.  124,  9  L.  R.  A.  505;  Concord  v.  Rurnney,  45 
JN.  H.  423.     And  see  Ward  v.  Dulaney,  23  Miss.  410. 

Kern  v.  Kern,  51  N.  J.  Eq.  574. 
8  St.  George  v.  Biddeford,  76  Me.  593. 


LEGAL    ADJUDICATIONS    IN    CIVIL   CASES.  385 

:iot  the  party  was  aware  that  a  ceremony  of  marriage  was  being 
performed,  but  whether  or  not  he  was  capable  of  understanding 
the  nature  of  the  contract  entered  into,  free  from  the  influence 
of  morbid  delusion  upon  the  subject.'  And  a  marriage  is  void  if 
at  the  time  it  was  contracted  and  solemnized  the  husband  had  not 
suflicient  mental  capacity  to  understand  that  by  the  marriage  con- 
tract he  assumed  all  the  duties,  obligations,  responsibilities, 
and  all  the  rights  accruing  out  of  the  relation,  though  he  need 
not  understand  what  such  duties,  obligations,  and  responsibilities 
and  rights  are.2  And  it  is  also  void  if  the  woman  at  the  time 
had  no  conception  of  the  meaning  of  the  transaction,  and  expressed 
various  doubts  as  to  its  nature,  and  was  indifferent  as  to  whom 
she  lived  with,  and  manifested  such  indecision  and  weakness  as 
to  render  her  an  easy  victim  of  design.3  But  marriage  is  not 
invalidated  for  want  of  understanding  of  either  party  where  there 
was  sufficient  intelligence  to  understand  at  the  time  of  the  cere- 
mony that  they  had  agreed  to  cohabit  solely  together.4  It  has 
been  held,  however,  that  persons  not  having  the  regular  use  of 
their  understanding  sufficiently  to  deal  with  discretion  with  the 
common  affairs  of  life,  or  whose  weakness  is  so  considerable  as  to 
amount  to  derangement,  are  incapable  of  contracting  a  valid  mar- 
riage.5 And  one  who  is  incapable  from  mental  imbecility  of 
taking  care  of  his  or  her  own  person  or  property  is  not  competent 
to  dispose  of  such  person  or  property  by  marriage.6  But  a  hus- 
band would  not  be  considered  incompetent  though  he  had  not  suf- 
ficient mental  capacity  to  be  able  to  provide  a  support  for  his  fam- 
ily if  he  was  possessed  of  sufficient  means  for  that  purpose.' 
The  fact  that  a  party  to  a  marriage  is  subject  to  some  vice  or 
uncontrollable  impulse  or  propensity,  however,  such  as  kleptoma- 
nia, will  not  justify  setting  it  aside  as  void  where  he  was  other- 

1  Hunter  v.  Edney,  L.  E.  10  Prob.  &  Div.  93;  Kern  v.  Kern,  51  N.  J.  Eq. 
574;  Slais  v.  Slais,  9  Mo.  App.  96. 

s  St.  George  v.  Biddeford,  76  Me.  593. 

3  Eex.  v.  Kelly,  cited  in  Shelf  ord  on  Lunacy,  399. 

4  Harrod  v.  Harrod,  1  Kay  &  J.  4,  18  Jut.  853. 

s  Cole  v.  Cole,  5  Sneed,  57,  70  Am.  Dec.  275;   True  v.  Eanney,  21  N.  H. 
53;  Foster  v.  Means,  1  Speer,  Eq.  569,  42  Am.  Dec.  332. 

6  Browning  v.  Eeane,  2  Phillim.  Eccl.  Eep.  69. 

7  St.  George  v.  Biddeford,  76  Me.  593. 

25 


386  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

wise  sane  and  able  to  understand  the  nature  and  obligations  of 
the  marriage  contract.1  Nor  is  dullness  of  intellect,  coupled  with 
deafness  and  dumbness,  alone  sufficient  to  incapacitate  one  to 
marry.11  Nor  is  mere  weakness  of  understanding3  or  mere 
dejection  of  mien  or  singularity  of  character.4  And  mere  imbecil- 
ity or  weakness  of  mind  caused  by  disease  would  not  be  sufficient 
•when  unaccompanied  by  circumstances  showing  that  it  had  been 
taken  advantage  of.6  But  a  marriage  clandestinely  solemnized, 
accompanied  by  circumstances  of  fraud  and  circumvention, 
between  a  person  of  weak  and  deranged  mind  and  the  daughter 
of  his  trustee  and  solicitor,  who  had  great  influence  over  him  and 
who  treated  him  and  considered  him  as  of  unsound  mind,  is  null 
and  void,  where  he  was  the  mere  instrument  in  their  hands  to  go 
through  with  the  necessary  forms.6 

§  3.  The  question  how  detei'mined. 
The  question  of  the  incapacity  of  a  party  to  contract  marriage 
is  usually  raised  and  determined,  as  will  be  seen  from  an  examina- 
tion of  the  cases,  in  an  action  for  a  decree  of  nullity,  but  no  decree 
declaring  the  nullity  of  the  marriage  of  a  lunatic  is  necessary.7 
Though  the  fitness  and  propriety  of  a  judicial  decision  pronoun- 
cing the  nullity  of  the  marriage  is  apparent,  and  would  be  conducive 
to  good  order  and  the  peace  and  conscience  of  the  party  seeking 
it.8  But  the  question  may  be  raised  and  decided  in  a  collateral 
action  in  a  suit  for  dower  or  distribution  or  the  like ; e  or  in  a 
proceeding  by  a  widow  after  the  death  of  her  husband  to  obtain 
a  yearly  support  on  objection  that  he  was  of  unsound  mind  and 

1  Lewis  v.  Lewis,  44  Minn.  124,  9  L.  E.  A.  505. 
*  Harrod  v.  Harrod,  1  Kay  &  J.  4,  18  Jur.  853. 

3  Foster  v.  Means,  1  Speer,  Eq.  569,  42  Am.  Dec.  332. 

4  Anonymous,  4  Pick.  32. 

6  Baughman  v.  Baughman,  32  Kan.  538. 

6  Portsmouth  t.  Portsmouth,  1  Hagg.  Eccl.  Eep.  355. 

'  Powell  v.  Powell,  18  Kan.  371,  26  Am.  Eep.  774;  Jenkins  v.  Jenkins,  2 
Dana,  103,  26  Am.  Dec.  437;  Johnson  v.  Kincade,  2  Led.  Eq.  470.  And 
see  Eawdon  v.  Eawdon,  28  Ala.  565;  Williamson  v.  Williams,  3  Jones,  Eq. 
446;  Wightman  v.  Wigbtman,  4  Johns.  Ch.  343. 

8  Powell  v.  Powell,  18  Kan.  371,  26  Am.  Eep.  774;  Johnson  v.  Kincade, 
2  Ired.  Eq.  470. 

9  Jenkins  v.  Jenkins,  2  Dana,  103,  26  Am.  Dec.  437.  But  see  Williamson 
v.  Williams,  3  Jones,  Eq.  446. 


LEGAL   ADJUDICATIONS    IN    CIVIL   CASES.  3S7 

incapable  of  contracting  marriage ; '  or  in  an  action  for  the 
recovery  of  pauper  supplies.2  The  validity  of  a  marriage  cannot 
be  impugned,  however,  on  the  ground  of  mental  incapacity  of  the 
husband  when  the  marriage  ceremony  was  performed,  where  the 
couple  had  lived  together'  as  man  and  wife  until  the  husband's 
death,  so  as  to  impair  the  claim  of  the  widow  to  the  sum  allowed. 
by  law  to  widows  in  necessitous  circumstances.3  So,  it  is  within 
the  power  of  the  legislature  to  prohibit  the  raising  of  the  question 
of  the  validity  of  existing  marriages  in  the  trial  of  a  collateral 
issue  on  the  ground  of  the  insanity  or  idiocy  of  the  party.4  And 
a  statute  to  that  effect  applies  to  marriages  existing  at  the  time 
of  the  statute,  and  it  cannot  be  shown,  in  an  action  to  recover  for 
the  support  of  a  pauper  against  a  town  in  which  a  settlement  is 
sought  to  be  established  by  reason  of  the  marriage  performed 
before  the  passage,  that  it  was  invalid  by  reason  of  the  insanity 
of  the  party.5  And  it  has  been  held  that  under  such  a  statute, 
if  no  proceeding  is  taken  to  set  aside  the  marriage  during  the  life- 
time of  the  insane  husband,  the  wife  is  entitled  to  dower.8  So,  an 
action  prosecuted,  tried,  and  decided  as  a  divorce  suit  cannot  be 
considered  as  one  prosecuted  to  have  a  void  marriage  pronounced 
a  nullity.7  Mental  incapacity  at  the  time  of  marriage  is  a  ground 
for  divorce  in  Georgia.8 

§  4.  Proof  to  establish  capacity  or  incapacity. 

The  proof  of  insanity  of  a  party  to  a  marriage  must  be  clear 
and  unquestionable  to  invalidate  it.9  And  the  question  of  sound- 
ness or  unsoundness  of  mind  depends  upon  the  general  frame 
and  habit  of  the  mind,  and  cannot  be  determined  from  particular 

1  Bell  v.  Bennett,  73  Ga.  784.  But  see  Sabalot  v.  Populus,  31  La.  Ann. 
854. 

2  Unity  v.  Belgrade,  76  Me.  419.  And  see  Gathings  v.  Williams,  5  Ired. 
L.  487,  28  Am.  Kep.  284. 

3  Sabalot  v.  Populus,  31  La.  Ann.  854. 

4  Goshen  v.  Bichmond,  4  Allen,  458.  See  also  Wiser  v.  Lockwood,  42 
Vt.  722. 

6  Goshen  v.  Bichmond,  4  Allen,  458. 

6  Wiser  v.  Lockwood,  42  Vt.  722. 

1  Powell  v.  Powell,  18  Kan.  371,  26  Am.  Bep.  774. 

8  Brown  v.  Westbrook,  27  Ga.  102. 

9  Cole  v.  Cole,  5  Sneed,  57,  70  Am.  Dec.  275. 


3S8  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

actions.1  Thus,  the  opinion  of  the  court  as  to  mental  capacity 
of  a  party  alleged  to  be  incapable  of  contracting  marriage  should 
be  formed  from  the  testimony  of  witnesses  who  have  long  been 
acquainted  with  him,  and  that  of  medical  experts,  in  preference 
to  any  personal  examination.2  And  testimony  of  a  physician  as 
to  the  insanity  of  such  a  party  is  entitled  to  but  little  weight 
where  he  did  not  know  him  at  the  time  in  question.3  Xor  does 
a  marriage  ceremony  performed  while  the  husband  was  upon  his 
death-bed  in  extremis  and  helpless,  surrounded  by  the  wife  and 
her  friends,  when  he  was  apparently  oblivious  to  his  former  wife 
and  children,  raise  any  presumption  against  the  validity  of  the 
previous  marriage.4  And  suicide  immediately  after  marriage 
does  not  establish  insanity  at  that  time.5 

So,  the  validity  of  a  marriage  attacked  upon  the  ground  of 
mental  incapacity  depends  upon  the  mental  condition  of  the 
party  at  the  very  time  it  took  place,  though  evidence  as  to  facts, 
circumstances,  and  conditions  both  before  and  after  the  marriao-e 
have  some  bearing  as  tending  to  show  such  condition.6  But 
proof  of  the  insanity  of  a  wife  both  before  and  after  the  marriage 
will  not  invalidate  the  marriage  where  she  was  sane  at  that  time.7 
And  the  fact  that  a  party  had  a  delusion  which  rendered  his  con- 
finement in  an  asylum  necessary  does  not  establish  his  incom- 
petency to  understand  the  marriage  contract.8  And  an  instruction 
in  an  action  to  annul  a  marriage  on  the  ground  of  the  lunacy  of 
a  party,  that  the  plaintiff  must  show  unsoundness  of  mind  at  the 
time,  continuing  beyond  question  to  the  time  of  the  party's  death, 
without  lucid  intervals,  if  erroneous  is  rendered  harmless  by  a 
finding  of  sanity  at  the  time  of  the  marriage.9  So,  knowledge 
that  the  ceremony  was  being  performed,10  or  proper  behavior  at 

1  Foster  v.  Means,  1  Speer,  Eq.  569,  42  Am.  Dec.  332. 

5  Thayer  v.  Thayer,  9  E.  I.  377. 
s  Slais  v.  Slais,  9  Mo.  App.  96. 

4  Christy  v.  Clarke,  45  Barb.  529. 

6  Mcldam  v.  Walker,  1  Dow,  P.  C.  148;  Crura  v.  Tkornley,  47  111.  192. 

6  Nonneniacher  v.  Xonnemacher,  159  Pa.  634;  St.   George  v.  Bicldeford, 
76  Me.  593;  McAdam  v.  Walker,  1  Dow,  P.  C.  148. 
1  Ward  v.  Dulaney,  23  Miss.  410. 

8  Kern  v.  Kern,  51  N.  J.  Eq.  574. 

9  Banker  v.  Banker,  63  N.  Y.  409. 

10  Hunter  v.  Edney,  L.  K.  10  Prob.  &  Div.  93. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  389 

the  time  of  its  performance,1  is  not  sufficient  to  establish  the 
existence  of  a  lucid  interval.  But  the  fact  that  a  man  married 
with  deliberation  and  intention,  after  procuring  a  license  himself 
and  declaring  that  he  was  going  to  be  married,  and  went  through 
the  ceremony  with  propriety,  and  lived  with  his  wife  as  such, 
shows  capacity  to  marry,  though  he  was  of  weak  understanding 
and  at  times  a  lunatic  and  did  many  mad  and  frantic  acts,  so  as 
to  warrant  a  grant  of  administration  of  his  effects  to  the  woman 
he  married.2  And  while  evidence  of  a  marriage  solemnized  in 
an  unusual  manner,  by  the  wife  going  to  the  house  of  the  hus- 
band and  both  parties  dispensing  with  the  ceremony  generally 
used,  and  agreeing  to  become  man  and  wife,  shows  perfect  indif- 
ference to  the  customs  of  society,  it  does  not  overcome  the  pre- 
sumption of  sanity,  though  it  may  tend  to  show  mental  inca- 
pacity.3 So,  recognition  by  the  parties  of  a  marriage  as  legal 
and  sufficient  is  strong  evidence  against  a  claim  that  the  marriage 
was  invalid  for  want  of  capacity  of  a  party.4  And  a  marriage 
voluntarily  contracted  by  a  person  of  full  age  and  sufficient 
capacity  to  understand  and  carry  it  out  after  a  guardian  had  been 
appointed  for  him,  the  parties  living  together  as  husband  and 
wdfe  for  sixteen  months  and  until  his  death  without  objection,  is 
valid  and  binding  where  no  proceedings  were  ever  taken  to  in- 
validate it.5  Nor  will  a  marriage  be  set  aside  upon  the  ground  of 
insanity  or  imbecility  because  a  party  thereto  was  a  person  of 
weak  intellect  who  at  times  did  not  express  himself  coherently, 
and  who  was  unable  to  reason  from  cause  to  effect,  and  had  been 
judicially  determined  to  be  unfit  to  take  care  of  himself  and  his 
property,  where  he  had  taken  care  of  his  property  with  the  con- 
sent of  his  family,  and  preserved  if  not  increased  it,  and  mani- 
fested shrewdness  and  judgment  in  business,  and  conducted  him- 
self with  propriety  with  reference  to  the  marriage.8     And  the 

1  Turner  v.  Meyers,   1  Hagg.  Consist.  Rep.  414;  Browning  v.  Eeane,  2 
Phillim.  Eccl.  Eep.  69. 

2  Parker  v.  Parker,  2  Lee,  Eccl.  Eep.  382;'  Anonymous,  4  Pick.  32;  Kern 
v.  Kern,  51  N.  J.  Eq.  574.     See  also  Smith  v.  Smith,  47  Miss.  211. 

3  Powell  v.  Powell,  27  Miss.  783. 

4  Harrod  v.  Harrod,  1  Kay  &  J.  4,  18  Jur.  853. 

5  McCleary  v.  Barcalow,  6  Ohio  C.  C.  481. 

6  Kern  v.  Kern,  51  N.  J.  Eq.  574. 


390  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

fact  that  he  had  an  unreasonable  fear  of  personal  violence,  and 
believed  that  he  or  his  brother  would  be  injured  if  they  went  out 
alone,  and  that  he  had  a  certain  disease,  which  was  not  so,  and 
that  he  could  see  inside  of  the  bodies  of  others,  does  not  show  an 
insane  delusion  which  will  invalidate  the  marriage.1     ISTor  will  a 
marriage  be  declared  void  without  an  issue  to  try  the  fact,  though 
the  husband  was  found  to  be  a  lunatic  from  an  antecedent  period, 
where  a  son,  the  issue  of  the  marriage,  had  enjoyed  an  estate  de- 
vised to  the  lunatic  and  his  children  as  a  legitimate  child.2     And 
where  a  man  who  has  been  adjudged  of  unsound  mind  afterwards 
marries  a  woman  with  whom  he  lives  for  more  than  thirty  years, 
the  presumption  of  continued  insanity  will  not  prevail  as  against 
the  presumption  in  favor  of  the  legality  of  the  marriage.3     And 
a  wife  who  waits  twenty-two  years  after  obtaining  knowledge  that 
her  husband  was  insane  when  they  were  married  is  barred  by 
lapse  of  time  from  obtaining  relief.4     So,  inability  on  the  part  of 
a  deaf  and  dumb  person  to  understand  others  in  general,  especi- 
ally strangers,  and  an  occasional  and  not  unfrequent  inability  to 
comprehend  simple  mathematical  calculations,  are  insufficient  to 
establish  incapacity  to  contract  marriage  or  to  warrant  the  grant- 
ing of  an  issue  as  to  the  validity  of  the  marriage.5     And  a  mar- 
riage will  not  be  decreed  invalid  where  the  party  alleged  to  be 
insane  knew  his  father  and  uncle  and  his  trustee,  and  the  nature 
of  the  trustee's  office,  and  displayed  shrewdness  and  intelligence 
upon  the  subject  of  the  legal  relation  which  he  bore  him,  though 
his  mind  was  weak  and  he  could  not  learn  to  count.6     l^or  is  in- 
sanity which  will  invalidate  a  marriage  established  by  proof  of 
eccentricity  and  irritability  and  failure  to  keep  a  promise  made 
before  the  marriage  to  discontinue  complaining  and  scolding  and 
bringing  up  old  troubles,  and  proof  of  subsequent  positive  insan- 
ity.7    And  evidence  that  a  woman  performed  her  usual  duties 
until  the  day  of  her  marriage,  and  was  at  times  dull  and  reticent, 

1  Kern  v.  Kern,  51  N.  J.  Eq.  574. 

2  Ellis  v.  Bowman,  17  L.  T.  11. 

3  Castor  v.  Davis,  120  Ind.  231. 

*  Rawdon  v.  Rawdon,  28  Ala.  565. 

5  Harrod  v.  Harrod,  1  Kay  &  J.  A,  18  Jur.  853. 

6  Elzey  v.  Elzey,  1  Houst.  (Del.)  309. 
1  Slais  v.  Slais,  9  Mo.  App.  96.     . 


LEGAL   ADJUDICATIONS    IN    CIVIL    CASES.  391 

and  that  after  the  ceremony  she  stated  she  was  not  worthy  of  her 
husband,  and  subsequently  could  not  be  aroused  to  take  any  inter- 
est in  anything,  and  afterwards  tried  to  strangle  herself,  and  was 
sent  to  an  asylum  where  she  became  violent  and  had  delusions  to 
the  effect  that  she  was  not  married  and  that  there  was  melancholia 
in  her  mental  condition  at  the  time  of  the  marriage  is  not  sufficient 
to  warrant  a  decree  of  nullity.1  Evidence  of  a  request  by  a  wife 
the  next  morning  after  marriage  to  her  husband  to  cut  her  throat, 
however,  and  of  declarations  that  she  had  committed  crimes  and 
was  unfit  to  be  his  wife,  together  with  evidence  of  a  previous  in- 
tent to  commit  suicide,  is  sufficient  to  show  that  at  the  time  of  the 
marriage  she  was  not  able  to  understand  and  appreciate  the 
nature  of  the  act.2  And  one  who  while  in  her  childhood  seemed 
unable  to  learn  to  read  or  write  or  to  learn  a  business  so  as  to  earn 
a  living,  but  who  was  always  supported  by  a  brother,  and  who 
had  to  be  washed  and  cleaned  and  put  to  bed  by  others,  is  not 
competent  to  contract  marriage.3 

XI.  Divoece.. 

§  1.  Insanity  as  a  ground  for. 
Insanity  occurring  after  marriage  is  not  a  ground  for  divorce 
unless  made  so  by  statute.4  And  statutes  prescribing  other 
grounds  for  divorce  of  a  general  or  kindred  nature  have  been 
uniformly  construed  so  as  to  exclude  insanity  after  marriage.5 
Nor  is  a  divorce  warranted  on  the  ground  of  the  impotency  of 
the  wife  because  she  was  afflicted  with  a  mental  disease  which 
was  without  her  fault,  where  she  lived  happily  with  her  husband 
for  several  years  after  the  marriage,  discharging  all  the  duties 
pertaining  to  the  marriage  relation.8  In  Arkansas,  Kentucky, 
and  Washington,  however,  divorce  on  the  ground  of  insanity  is 

1  Cannon  v.  Sinalley,  L.  B.  10  Prob.  &  Div.  96. 

2  Hunter  v.  Edney,  L.  E.  10  Prob.  &  Div.  93. 

3  Browning  v.  Eeane,  2  Phillim.  Eccl.  Eep.  69. 

4  Lloyd  v.  Lloyd,  66  LI.  87;  Baker  v.  Baker,  82  Ind.  146;  Tiffany  v. 
Tiffany,  84  Iowa,  122;  Wertz  v.  Wertz,  43  Iowa,  534;  Powell  v.  Powell,  18 
Kan.  371,  26  Am.  Eep.  774;  Pile  v.  Pile,  94  Ky.  308;  Forman  v.  Forman, 
53  N.  Y.  S.  E.  639. 

5  See  Lloyd  v.  Lloyd,  66  111.  87;  Curry  v.  Curry,  1  Wilson,  Super.  Ct. 
(Ind.)  236. 

6  Pile  v.  Pile,  94  Ky.  308. 


392  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

authorized  by  statute.1  And  insanity  at  the  time  of  the  marriage 
is  a  ground  for  divorce  in  Georgia.2  And  it  has  been  held  that 
insanity  at  the  time  of  marriage,  concealed  from  the  other  party, 
renders  the  marriage  invalid  on  the  ground  of  fraud.3 

§  2.  Insanity  as  affecting  adultery. 
The  general  rule  is  that  adultery  committed  while  insane  and 
not  during  a  lucid  interval  is  not  a  ground  for  divorce.4  But 
insanity  is  no  defense  to  an  action  for  divorce  upon  the  ground 
of  adultery  where  at  the  time  of  the  commission  of  the  act  the 
party  was  capable  of  appreciating  the  nature  of  the  act  and  its 
probable  consequences.6  And  it  has  been  suggested  that  insanity 
which  would  acquit  on  a  criminal  prosecution  would  constitute  a 
valid  defense  in  a  suit  for  divorce  on  that  ground.6  Where  the 
evidence  on  the  part  of  a  petitioner  for  divorce  for  adultery  dis- 
closes the  respondent's  insanity,  the  court  will  require  to  be 
satisfied  that  it  admits  of  a  different  explanation  before  it  will 
decree  for  the  petitioner,  though  the  question  was  not  raised  in 
the  pleading.7  And  evidence  of  depravity  of  character  and 
abandoned  habits  is  not  sufficient  to  establish  insanity  as  a  defense 
in  a  divorce  case.8  So,  a  wife  who  leaves  her  home  under  a 
delusion  that  her  husband  is  trying  to  poison  her,  and  who  com- 
mits adultery  with  the  idea  that  it  might  probably  be  the  means 
of  bringing  about  a  divorce,  is  responsible  therefor,  her  act  fur- 
nishing a  good  ground  for  divorce.9  And  a  divorce  will  be 
granted  where  the  evidence  shows  the  defendant  to  have  been 
sane  at  the  time  of  the  act,  notwithstanding  the  fact  that  she  had 
been    adjudicated  a  lunatic  two  or  three  years  before,   which 

1  See  Newcomb  v.  Newcomb,  13  Bush,  544,  26  Am.  Eep.  222;  Hickman 
v.  Hickman,  1  Wash.  257. 

2  Brown  v.  Westbrook,  27  Ga.  102. 

3  See  Keyes  v.  Keyes,  22  N.  H.  553;  Hamaker  v.  Hamaker,  18  HI.  137, 
45  Am.  Dec.  705;  Smith  v.  Smith,  47  Miss.  211. 

4Wrayv.  Wray,  19  Ala.  522;  Broadstreet  v.  Broadstreet,  7  Mass.  474; 
Nichols  v.  Nichols,  31  Vt.  331,  73  Am.  Dec.  352;  Yarrow  v.  Yarrow  [1892], 
P.  92. 

6  Yarrow  v.  Yarrow  [1892],  P.  92. 

6  See  Yarrow  v.  Yarrow  [1892],  P.  92. 

1  HaU  v.  Hall,  3  Swab.  &  T.  349. 

8  Hill  v.  Hill,  27  N.  J.  Eq.  214. 

9  Yarrow  v.  Yarrow  [1892],  P.  92. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASKS.  393 

adjudication  remained  unreversed.'  Though  such  an  adjudica- 
tion established  the  fact  and  cannot  be  contradicted,  and  the 
insanity  is  presumed  to  continue,  the  presumption  being  rebutted 
by  the  evidence  of  subsequent  sanity.2 

In  Pennsylvania,  however,  it  has  been  held  that  a  wife's 
insanity  would  be  a  defense  to  an  action'  for  divorce,  though  it 
was  such  as  to  have  effaced  from  her  mind  the  first  lines  of  con- 
jugal duty.3  But  this  rule  has  been  criticised  in  the  cases  cited 
above,  and  some  doubt  was  thrown  upon  it  in  a  subsequent  Penn- 
sylvania case.4 

So,  nymphomania,  consisting  of  a  morbid  sexual  desire,  is  not 
such  insanity  as  would  excuse  adultery  as  a  ground  for  divorce.5 
And  subsequent  insanity  of  a  permanent  nature  of  a  party  to  a 
marriage  will  not  deprive  the  other  of  a  right  to  have  the  mar- 
riage relation  dissolved  for  an  act  of  adultery  committed  while 
such  party  was  sane  and  responsible.6 

§  3.  Insanity  as  affecting  desertion. 

Desertion  of  or  failure  to  support  a  wife  by  her  husband, 
though  made  a  ground  for  divorce  by  statute,  is  not  so  where  it 
arises  from  insanity.7  But  a  husband  who  wilfully  deserts  his 
wife  while  sane,  and  remains  away  for  the  statutory  period  war- 
ranting a  divorce,  cannot  excuse  himself  on  the  ground  that  he 
became  insane  before  the  expiration  of  such  statutory  period.8 
And  the  failure  of  a  husband  to  provide  sufficient  maintenance 
for  his  wife  suitable  to  her  condition  while  she  is  separated  from 
him  without  her  fault  and  confined  in  a  lunatic  asylum  entitles 
her  to  a  decree  for  alimony.9  Nor  is  an  abandonment  of  a  hus- 
band established  which  will  entitle  him  to  a  divorce  by  the  fact 

1  Cook  v.  Cook,  53  Barb.  180. 

2  Cook  v.  Cook,  53  Barb.  182. 

3  Matchin  v.  Matchin,  6  Pa.  332,  47  Am.  Dec.  466. 

4  HanseU  v.  Hansell,  3  Pa.  Dist.  B.  724. 

5  Hill  v.  Hill,  27  N.  J.  Eq.  214. 

6  Bathbun  v.  Batlibun,  40  How.  Pr.  328;  Straford  v.  Straford,  92  N.  C. 
297. 

1  Baker  v.  Baker,  82  Ind.  146. 

8  Douglass  v.  Douglass,  31  Iowa,  421. 

9  Wray  v.  Wray,  33  Ala.  187. 


394  MEDICAL    JCRISPEUDEXCE    OF    INSANITY. 

that  the  wife  was  confined  in  an  asylum  with  his  consent.1  And 
a  divorce  will  not  be  granted  a  husband  against  his  wife  for  her 
abandonment  on  account  of  a  quarrel  where  she  had  been  insane 
but  had  been  at  least  partially  cured,  and  he  was  not  at  all  times 
as  considerate  as  he  might  have  been  in  view  of  her  infirmity  and 
weakness.2 

§  4.  Insanity  as  affecting  cruelty. 

Cruel  and  inhuman  treatment  does  not  warrant  a  divorce 
where  it  is  the  result  of  insanity.3  The  intent  and  motive  of  a 
party  are  a  necessary  ingredient  to  the  offense  of  cruelty  and  bar- 
barous treatment  and  indignities  to  the  person  endangering  life 
or  health  as  a  ground  for  divorce,  and  such  intent  cannot  be  held 
to  exist  where  legal  insanity  is  established.4  And  the  fact  that  a 
wife  is  insane,  and  intends  personal  violence  to  her  husband, 
furnishes  no  answer  to  a  claim  for  restitution  of  conjugal  rights 
on  her  part,  as  the  husband  is  not  entitled  to  turn  her  out  of 
doors  because  insane,  but  is  rather  bound  to  place  her  in  proper 
custody  and  under  proper  care.5  To  establish  insanity  as  a  de- 
fense in  an  action  for  divorce  for  cruelty  it  must  appear  that  the 
defendant  was  in  such  a  mental  condition  as  to  deprive  him  of 
the  use  of  his  reason  to  the  extent  that  he  did  not  know  right 
from  wrong  and  was  incapable  of  willing  the  one  or  the  other.6 
The  question  whether  the  insanity  of  a  husband  will  excuse  acts 
of  cruelty  for  which  a  divorce  is  asked,  depends  upon  whether 
he  was  capable  of  understanding  the  nature  and  consequences  of 
the  acts  charged  at  the  time  of  their  commission.7  A  divorce 
will  not  be  granted  against  a  wife  on  that  ground  because  of  a 
charge  against  her  husband  that  he  was  attempting  to  poison  her 
where  the  theory  that  her  fears  and  the  charge  were  the  result 

1  Pile  v.  Pile,  94  Ky.  308. 

';  Franklin  t.  Franklin,  53  Kan.  143. 

3  Cohn  v.  Cohn,  85  Cal.  108;  Tiffany  v.  Tiffany,  81  Iowa,  122;  Wertz  v. 
TVertz,  13  Iowa,  531;  Avery  v.  Avery,  33  Kan.  1,  52  Am.  Kep.  523;  Pow- 
ell v.  Powell,  18  Kan.  371,'  26  Am.  Rep.  771;  Hall  v.  Hall,  3  Swab,  k  T. 
349. 

*  Hansen  v.  Hansell,  3  Pa.  Dist.  K.  724. 

5  Hayward  v.  Hayward,  1  Swab.  &  T.  81. 

6  Hansell  v.  Hansell,  3  Pa.  Dist.  E.  724. 
'  Hanbnry  v.  Hanbnry  [1892]  P.  222. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  395 

of  a  temporary  aberration  of  the  mind  was  as  reasonable  as  any 
other.'  And  acts  of  violence  on  the  part  of  a  husband  towards 
his  wife,  provoked  by  and  consisting  mainly  of  resistance  of 
attempts  to  take  morphine  from  him  while  he  was  in  a  state  of 
delirium  produced  by  its  use,  do  not  constitute  extreme  and 
repeated  cruelty  authorizing  a  divorce.2  But  violent  acts  upon 
the  part  of  a  husband  toward  his  wife  while  laboring  under  a 
state  of  cerebral  excitement  arising  from  the  fatigues  and  anxie- 
ties of  business  warrant  a  judicial  separation  where  he  was  not 
an  irresponsible  agent  and  there  was  a  liability  of  a  recurrence 
of  such  excitement  which  would  render  cohabitation  with  him 
unsafe.3  The  mere  existence  of  an  insane  delusion,  however,  with 
reference  to  the  character  and  conduct  of  the  wife  or  otherwise, 
is  not  sufficient  as  an  excuse  for  cruelty  as  a  ground  of  divorce.4 
So,  the  mental  condition  of  a  wife,  if  not  such  as  to  deprive  her 
of  power  to  desist  from  provoking  conduct,  will  not  remove  her 
case  from  the  rule  that  denies  her  a  divorce  on  the  ground  of 
cruelty  where  the  conduct  complained  of  was  provoked  by  her 
and  not  disproportionate  to  the  provocation." 

§  5.  Insanity  as  affecting  the  action. 

The  rule  adopted  by  the  American  cases  is  that  the  right  to 
sue  for  a  divorce  is  a  personal  one  depending  upon  the  free  and 
voluntary  consent  and  will  of  a  party,  and  if  such  party  is  insane 
his  guardian  or  next  friend  cannot  institute  such  a  suit.6  But 
evidence  that  a  woman  was  an  inmate  of  an  insane  asylum  for 
nearly  two  years,  when  she  was  discharged  in  an  improved  con- 
dition but  not  well,  does  not  establish  that  she  was  so  insane  as  to 
be  incompetent  to  maintain  an  action  for  divorce  commenced 
nearly  four  years  after.7  In  England,  however,  the  rule  is  that 
proceedings  for  divorce  are  civil,  and  that,  where  no  provision  is 

1  Sapp  v.  Sapp,  71  Tex.  348. 

2  Youngs  v.  Youngs,  130  111.  230,  6  L.  E.  A.  543. 

3  Martin  v.  Martin,  8  Week.  Eep.  367. 

4  Smith  v.  Smith,  33  N.  J.  Eq.  458;  Scoland  v.  Scoland,  4  Wash.  118. 
Duvale  v.  Duvale  (N.  J.)  34  Atl.  888. 

6  Worthy  v.  Worthy,  36  Ga.  45,  91  Am.  Dec.  758;  Bradford  v.  Abend, 
89  111.  78,  31  Am.  Rep.  67;  Mohler  v.  Shank,  93  Iowa,  273,  34  L.  R.  A, 
161;  Birdzell  v.  Birdzell,  33  Kan.  434,  52  Am.  Rep.  539. 

7  Ellis  v.  White,  61  Iowa,  644. 


396  MEDICAL   JUKISPKUDENCE    OF    INSANITY. 

made  in  the  statute,  recourse  must  be  had  to  the  ordinary  powers 
of  civil  courts  where  lunatics  are  litigants,  and  that  the  insanity 
of  a  husband  or  wife  will  not  bar  a  suit  by  the  committee  of  one 
of  them,  who  is  a  lunatic,  for  the  dissolution  of  the  marriage.1 
And  in  ^Massachusetts  and  Rhode  Island  provision  is  made  by 
statute  for  the  prosecution  of  suits  for  divorce  by  the  guardian 
of  an  insane  party,  or  by  a  next  friend  appointed  by  the  court 
for  that  purpose.2  But  the  difficulty  of  ascertaining  the  real 
facts  in  a  divorce  case  when  either  party  is  incapable  of  testify- 
ing or  of  instructing  counsel  because  of  insanity  requires  the 
court  to  proceed  with  the  utmost  caution,  especially  where  the 
object  of  the  suit  is  to  obtain  a  complete  dissolution  of  the  mar- 
riage without  the  intelligent  consent  of  the  complainant.3 

So,  some  of  the  earlier  English  cases  refuse  to  permit  an  action 
for  divorce  to  proceed  against  a  defendant  who  had  become 
insane,  upon  the  ground  that  he  was  thereby  incapacitated  from 
making  a  defense.4  But  these  cases  were  overruled  and  the  rule 
was  subsequently  adopted  that  the  lunacy  of  a  wife  after  the 
commission  of  adultery  is  no  ground  for  staying  proceedings 
brought  by  her  husband  against  her  for  divorce.5  And  this  is 
the  rule  adopted  by  the  American  cases,  irrespective  of  statute.3 
And  defense  by  guardian  is  provided  for  by  statute  in  Massachu- 

1  Baker  v.  Baker,  L.  E.  5  Prob.  Div.  142,  49  L.  J.  Prob.  $.  S.  49,  42  L. 
T.  N.  S.  332,  28  Week.  Eep.  630,  Affirmed  L.  B.  6  Prob.  Div.  12,  49  L.  J. 
Prob.  N.  S.  83;  Parnell  v.  Parnell,  2  Philliin.  Eccl.  Eep.  158,  2  Hagg. 
Consist.  Eep.  169;  Woodgate  v.  Taylor,  2  Swab.  &  T.  512,  30  L.  J.  Mat. 
N.  S.  197,  5  L.  T.  X.  S.  119. 

2  Garnett  v.  Garnett,  114  Mass.  379,  19  Am.  Eep.  369;  Cowan  v.  Cowan, 
139  Mass.  377;  Denny  v.  Denny,  8  Allen,  311;  Thayer  v.  Thayer,  9  E.  L 
377. 

3  Garnett  v.  Garnett,  114  Mass.  379,  19  Am.  Eep.  369. 

4  Bawden  v.  Bawden,  2  Swab.  &  T.  417,  3  L.  J.  Mat.  N.  S.  94,  8  Jur.  K 
S.  157,  6  L.  T.  N.  S.  27,  10  Week.  Eep.  292;  King  v.  King,  cited  in  L.  E. 
2  Prob.  &  Div.  125;  Mordaunt  v.  Mordaunt,  L.  E.  2  Prob.  &  Div.  129,  18 
Week.  Eep.  845. 

5  Mordaunt  v.  Moncrieffe,  43  L.  J.  Mat.  N.  S.  49,  30  L.  T.  N.  S.  649,  22 
Week.  Eep.  12,  L.  E.  2  H.  L.  (Sc.)  374;  Baker  v.  Baker,  L.  E.  5  Prob. 
Div.  142,  49  L.  J.  Prob.  N.  S.  49,  42  L.  T.  N.  S.  322,  28  Week.  Eep.  630. 

6  Eathbun  v.  Eathbun,  40  How.  Pr.  328;  Stratford  v.  Stratford,  92  1ST.  C. 
297. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  397 

setts  and  Rhode  Island.1  An  action  for  divorce  should  not  be 
tried,  however,  against  one  whose  reason  has  been  dethroned  and 
who  is  thus  rendered  incapable  of  making  answer  to  the  charge 
or  aiding  counsel  in  the  conduct  of  the  defense,  unless  at  least  a 
reasonable  time  is  allowed  for  recovery.3  And  a  default  will  be 
opened  and  further  proceedings  stayed  on  suggestion  that  since 
the  commission  of  the  offense  the  defendant  has  become  insane, 
unless  the  appointment  of  a  guardian  for  him  is  procured.3 

XII.  Settlement  or  domicil. 
Insanity  need  not  amount  to  complete  madness  to  render  a 
party  unable  to  choose  a  settlement  or  domicil.  In  such  a  case 
the  jury  is  to  consider  whether  the  mind  of  the  party  was  dis- 
eased to  such  an  extent  as  to  deprive  him  of  volition,  free  will, 
and  power  of  choice,  so  as  to  take  away  from  him  his  control 
over  his  mind  and  his  actions."  But  incipient  insanity  does  not 
incapacitate  one  from  gaining  a  settlement.5  A  pauper  is  pre- 
sumed to  have  sufficient  intellect  and  intelligence  to  exercise  a 
choice  with  regard  to  his  residence  until  the  contrary  is  con- 
clusively shown,6  and  one  who  has  sufficient  mental  capacity  to 
form  an  intention  and  to  have  a  choice  as  to  his  place  of  abode, 
and  goes  to  live  in  the  place  of  his  choice  without  compulsion, 
and  lives  there  for  the  period  prescribed  by  law  without  assistance 
from  any  town,  acquires  a  settlement  in  that  place,7  though  pro- 
ceedings for  the  appointment  of  a  guardian  were  pending.8  So, 
a  residence  in  a  town  for  the  requisite  period  will  give  a  woman  a 
legal  settlement  though  she  is  a  person  of  weak  intellect  but  capable 
of  doing  the  coarser  work  about  the  kitchen,  knitting  and  sewing, 
and  is  handy  in  taking  care  of  small  children,  and  can  read,  and 
attends  church  and  behaves  with  propriety,  though  she  is  not 

1  See  Garnett  v.  Garnett,  114  Mass.  379,  19  Am.  Eep.  369;  Little  v.  Lit- 
tle, 13  Gray,  264;  Thayer  v.  Thayer,  9  E.  I.  377. 

2  Stratford  v.  Stratford,  92  N.  C.  297. 

3  Mansfield  v.  Mansfield,  13  Mass.  412. 

4  Townsend  v.  Pepperell,  99  Mass.  40. 

5  Buckland  v.  Charlemont,  3  Pick.  173. 

6  Topsham  v.  Chelsea,  60  Vt.  219. 

1  Westmore  v.  Sheffield,  56  Vt.  239;  Fayette  v.  Chesterville,  77  Me.  28, 
52  Am.  Eep.  741. 

8  Talbot  v.  Chamberlain,  149  Mass.  57,  3  L.  E.  A.  254. 


398  MEDICAL    JOTUSPKUDENCE    OF    INSANITY. 

capable  of  taking  care  of  herself  by  seeking  employment  and 
making  contracts  and  providing  herself  with  a  place  to  live.1  A 
child  whose  mental  capacity  is  such  that  she  is  incapable  of  exer- 
cising any  choice  or  intention  in  regard  to  her  residence,  however,, 
is  not  emancipated  npon  attaining  her  majority,  where  she  con- 
tinues to  reside  in  her  father's  family,  and  would  take  by  deriva- 
tion a  settlement  subsequently  acquired  by  him.J  And  a  marriage 
by  a  female  pauper  with  a  man  so  void  of  understanding  as  to  be 
incapable  of  making  a  valid  contract  will  not  change  the  place  of 
her  settlement  from  that  of  her  nativity.3  But  where  the  lunacy 
of  a  person  is  merely  temporary  and  not  permanent  his  mainte- 
nance is  chargeable  to  the  parish  of  his  selection.4 

XIII.     Statute  or  limitations. 

Sufficient  mental  ability  to  know  what  one  is  doing  and  the 
nature  of  the  act  done  is  not  the  test  of  insanity  within  the  mean- 
ing of  the  statute  of  limitations.5  The  mental  incapacity  which 
will  prevent  the  running  of  the  statute  of  limitations  must  be 
such  as  to  render  the  party  unable  to  understand  or  ascertain  his 
rights  and  that  his  rights  have  been  trespassed  upon  and  that  such 
trespass  would  eventually  destroy  them.6  And  that  which  will 
prevent  the  statute  from  running  against  a  settlement  of  a  claim 
must  be  such  as  to  render  the  party  unable  to  understand  that  the 
relation  of  debtor  and  creditor  existed  between  himself  and  the 
other  party,  and  the  amount  he  was  to  receive  in  satisfaction  of 
the  indebtedness,  and  to  have  a  rational  idea  as  to  all  the  circum- 
stances of  the  case  and  as  to  the  propriety  of  such  settlement.7  And 
the  statute  will  not  run  in  case  of  a  dispossession  where  the  owner 
was  so  mentally  diseased  as  not  to  know  that  he  was  the  owner  of 
the  land  in  question,  and  that  it  was  in  the  possession  of  another, 

1  Ludlow  v.  Landgrove,  42  Vt.  137. 

2  Topsham  v.  Chelsea,  60  Vt.  219. 

3  Middleborough  v.  Bochester,  12  Mass.  363. 

4  Keg.  v.  Manchester,  2  Jur.  N.  S.  1205;  Hunslet  v.  Densberry  Union,. 
2  Jur.  N.  S.  1207,  note. 

5  Burnhani  v.  Mitchell,  34  Wis.  117. 

6  Warlick  v.  Plonk,  103  K  C.  81 ;  Oliver  v.  Berry,  53  Me.  206,  87  Am.  Dec 
547.     And  see  Clark  v.  Trail,  1  Met.   (Ky.)  35. 

1  Burnhani  v.  Mitchell,  34  Wis.  117. 


LEGAL   ADJUDICATIONS   IN    CIVIL   CASES.  399 

and  that  his  right  would  be  lost  by  failure  to  act.1  The  word  "  in- 
sane "  as  used  in  the  statute  of  limitations  has  been  construed  as 
equivalent  to  the  term  non  compos  mentis,  or  a  person  of  unsound 
and  deranged  mind,  as  used  in  the  statute  of  wills  ;  and  if  a  per- 
son is  so  insane  as  to  be  incapable  of  making  a  will  he  should  be 
considered  insane  within  the  meaning  and  intent  of  the  statute  of 
limitations.2  So,  the  statute  of  limitations  will  not  commence 
running  against  a  grantor's  right  to  commence  an  action  to  set 
aside  a  deed  which  he  was  fraudulently  induced  to  execute,  until 
he  recovers  his  reason  and  discovers  what  he  has  done."  And  an 
incompetency  which  will  exonerate  him  from  the  consequences  of 
laches  in  not  applying  to  have  the  deed  set  aside  must  be  such 
as  prevents  him  from  realizing  the  nature  and  consequences  of 
the  fraud  and  the  eifect  of  the  conveyance,  and  which  precludes 
him  from  taking  the  necessary  steps  required  of  him.4  But 
where  one  has  ascertained  the  facts  which  constitute  the  fraud, 
and  knows  of  its  existence,  the  statute  begins  to  run  irrespect- 
ive of  the  degree  of  intelligence  possessed  by  him  whether 
he  has  enough  courage  and  independence  to  resist  hostile 
influences  and  assert  his  rights  or  not.5  Old  age  causing  such 
imbecility  as  to  render  the  party  incapable  of  transacting  any 
business  is  sufficient  to  prevent  the  statute  of  limitations  from 
running  against  him,8  and  it  will  not  run  against  a  party  who  is 
beaten  by  another  to  such  an  extent  that  he  becomes  deranged  so 
as  to  bar  an  action  for  the  beating.7  Nor  will  testimony  of  a  wit- 
ness that  a  person  was  scrambled  and  addled,  but  sometimes  had 
pretty  good  sense,  warrant  a  court  in  announcing  its  conclusion  in 
the  presence  of  the  jury  that  such  party  was  insane  and  that  the 
statute  of  limitations  would  not  run  against  him.8  And  to  prove 
that  fraud  was  concealed  within  the  meaning  of  a  statute  provid- 
ing that  the  cause  of  action  therefor  shall  accrue  at  the  time  of  its 

1  Warlick  v.  Plonk,  103  N.  C.  81;  Clark  v.  Trail,  1  Met.  (Ky.)  35. 

2  Burnham  v.  Mitchell,  34  Wis.  117. 

3  Orowther  v.  Eowlandson,  27  Cal.  376. 

4  Wright  v.  Fisher,  65  Mich.  275.     And  see  Allore  v.  Jewell,  94  U.  S. 
503,  24  L.  ed.  260. 

5  Piper  v.  Hoard,  107  N.  Y.  67.     And  see  Warlick  v.  Plonk,  103  N.  C.  81. 

6  Porter  v.  Porter,  3  Humph.  586. 
1  Sasser  v.  Davis,  27  Tex.  656. 

8  Asbury  v.  Fair,  111  N.  O.  251. 


•±<JU  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

discovery  it  is  not  sufficient  to  show  that  the  person  defrauded  was 
such  an  imbecile  or  in  such  a  condition  of  mind  that  it  was  scarcely 
possible  that  he  could  have  discovered  it  though  it  was  an  open  act 
if  the  condition  of  his  mind  was  not  that  of  actual  lunacy.1  Xor 
does  being  cross,  cranky,  freakish,  and  peculiar  occasionally, 
either  in  private  or  public,  constitute  insanity  within  the  meaning 
•of  a  statutory  provision  that  an  action  may  be  brought  within 
two  years  alter  the  removal  of  the  disability.2  And  insanity 
which  did  not  develop  until  after  the  expiration  of  six  months 
from  the  time  of  the  accident  alleged  to  have  caused  it  does  not 
extend  the  period  of  limitation  applicable  to  actions  for  personal 
injuries  under  a  statutory  provision  for  such  extension  where  the 
person  entitled  to  bring  the  action  is  insane  at  the  time  the  cause 
of  action  accrues.3 

So.  a  disability  which  will  affect  the  running  of  the  statute  of 
limitations  must  be  an  existing  one  at  the  time  the  cause  of 
action  accrues.4  And  the  statute  begins  to  run  where  the  party 
knew  the  facts  at  that  time,  though  he  was  of  weak  mind  and 
was  induced  by  fraudulent  representations  and  undue  influence 
to  refrain  from  procuring  his  lights.5  And  the  fact  that  the  son 
and  heir  of  a  person  who  had  been  disseised  of  his  lands  while 
non  compos  mentis  was  also  rum  compos  mentis,  and  remained  so 
from  the  time  of  the  disseisin  until  the  time  of  Iris  death,  would 
not  prevent  the  statute  from  running  against  his  claim.6  The 
fact  that  mental  incapacity  was  caused  by  voluntary  intoxication 
does  not  alter  its  effect  in  preventing  the  running  of  the  statute 
of  limitations.7  Legal  liabilities  may  be  enforced  against  lunatics 
and  idiots,  and  therefore  the  fact  that  they  are  not  in  all  respects 

1  Manby  v.  Be^vick,  3  Kay  &  J.  342. 

s  Calumet  Electric  Street  E.  Co.  v.  Mabie.  66  HL  App.  235. 

3  Calumet  Electric  Street  E.  Co.  v.  Mabie,  66  HI.  App.  238. 

1  Griswold  v.  Butler,  3  Conn.  227;  Clark  v.  Trail,  1  Met.  (By.)  35; 
Jones  v.  Perkins,  5  B.  Mon.  222;  Allis  v.  Moore,  2  Allen,  306;  Piper  v. 
Hoard,  107  N.  Y.  67;  Asbury  v.  Pair,  111  X.  C.  251;  Aclamson  v.  Smith,  2 
Mill  Const.  269,  12  Am.  Dec.  665;  Lincoln  v.  Norton,  36  Yt.  679;  Oliver  v. 
Pullam,  24  Fed.  Eep.  127;  Doe,  Griggs,  v.  Shane,  4  Term  Eep.  306;  Cot- 
fcerell  v.  Dutton,  4  Taunt.  826. 

5  Piper  v.  Hoard,  107  X.  Y.  67. 

f  Griswold  v.  Butler.  3  Conn.  227. 

:  Bliss  v.  Connecticut  A  P.  E.  E.  Co.  24  Yt.  424. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  401 

sui  juris  is  no  reason  for  extending  the  time  allowed  by  statute 
for  commencing  actions  against  them.1 

XIV.  Judgments. 
A  judgment  against  a  party  is  not  void  or  voidable  or  impeach- 
able collaterally  where  jurisdiction  was  obtained  merely  because 
the  person  against  whom  it  was  rendered  was  insane  ; 2  it  is  a  lien 
on  land  ; 3  and  the  property  of  a  lunatic  is  not  exempt  from 
execution  issued  upon  a  judgment  rendered  subsequent  to  the 
establishment  of  his  insanity.4  But  the  fact  that  a  person  against 
whom  a  suit  is  commenced  by  service  of  process  upon  him  is 
insane,  and  that  he  so  continued  until  judgment  was  rendered,  is 
good  cause  to  reverse  the  judgment  upon  a  writ  of  error.'  Or  a 
summary  application  may  be  made  to  the  court  in  which  the 
judgment  was  obtained.6  Or  where  there  is  no  remedy  at  law 
and  the  judgment  has  been  improperly  recovered  for  pretended 
claims  not  justly  due.  the  committee  may  proceed  by  bill  in 
equity  for  relief  against  it,7  or  to  restrain  the  proceeding.6  And 
unsoundness  of  mind  amounting  to  incapacity  to  do  or  under- 
stand business  is  a  good  cause  for  setting  aside  a  default  and 

1  Sanford  v.  Sanford,  62  X.  T.  553. 

:  Walker  v.  Clay,  21  Ala.  807;  Sacramento  Sav.  Bank  v.  Spencer,  53  CaL 
737;  Dunn  t.  Dunn,  114  CaL  210;  Newell  v.  Smith,  23  Ga,  170;  Foster  v. 
Jones,  23  Ga.  168;  Xoel  v.  Modern  Woodmen  of  America,  61  HI.  App. 
597;  Maloney  v.  Dewey,  127  111.  395;  Boyer  v.  Berrynian,  123  Ind.  451; 
Dickerson  v.  Davis,  111  Ind.  433;  Woods  v.  Brown,  93  Ind.  164,  47  Am. 
Bep.  369;  Allison  v.  Taylor,  6  Dana,  87,  32  Am.  Dec.  68;  King  v.  Bobin- 
son,  33  Me.  114,  54  Am.  Dec.  614;  Stigers  v.  Brent,  50  Md.  214,  33  Am. 
Bep.  317;  Heard  v.  Sack,  81  Mo.  610;  Crow  v.  Meyersieck,  88  Mo.  411; 
Lamprey  v.  Xudd,  29  N.  H.  299;  Crippen  v.  Culver,  13  Barb.  428;  Stern- 
berg v.  Schoolcraft,  2  Barb.  153;  Brittan  v.  Mull,  99  N.  C.  483;  Johnson 
v.  Pomeroy,  31  Ohio  St.  247;  Wood  v.  Bayard,  63  Pa.  320;  Denni  v. 
Elliott,  60  Tex.  337;  Wynne  v.  Xewnian,  75  Ya.  816;  Pollock  v.  Horn,  13 
Wash.  626;  Watt  v.  Bookover,  35  W.  Ya.  323;  Withrow  v.  Smithson,  37 
W.  Ya.  757,  19  L.  B,  A.  762;  BramhaU  v.  United  States,  6  Ct.  CL  238. 

3  Withrow  v.  Smithson,  37  W.  Ya.  757,  19  L.  B.  A  762. 

«  Pollock  v.  Horn,  13  Wash.  626. 

5  Lamprey  v.  Xudd,  29  X.  H.  299;  Demelt  v.  Leonard,  19  How.  Pr. 
142;  Leach  v.  Marsh,  47  Me.  548,  74  Am.  Dec.  503. 

6  Demelt  v.  Leonard,  19  How.  Pr.  142. 

:  Demelt  v.  Leonard,  19  How.  Pr.  142;  Be  Hopper,  5  Paige,  491. 
8  Sternbergh  v.  Schoolcraft,  2  Barb.  153;   Bobertson  v.  Lain,  19  Wend. 
650;   Clarke  v.  Dunham,  4  Denio,  262. 
26 


-i02  MEDICAL    JUKISPBUDENCE    OF    INSANITY. 

opening  a  judgment  rendered  thereon.1  And  a  judgment  against 
a  debtor,  taken  when  he  had  not  sufficient  capacity  by  reason  oi 
insanity  to  understand,  his  rights  and  duties  as  a  party  to  the 
action,  no  guardian  having  been  appointed  for  him,  making  no 
allowance  for  payments  which  had  been  made,  cannot  be  enforced, 
though  equity  in  interposing  will  require  justice  to  be  done  by 
way  of  payment  of  the  amount  due.2  So,  judgments  confessed 
by  an  insane  person,  and.  a  sale  under  execution  thereon  to  the 
person  in  whose  favor  the  confession  was  made,  are  properly 
set  aside,3  but  will  be  allowed  to  stand  where  the  sale  was  made 
to  a  person  not  a  party  to  the  judgment,  and  having  no  knowl- 
edge of  its  invalidity  or  of  the  insanity  of  the  judgment  debtor.4 
And  it  is  a  sufficient  ground  in  equity  for  a  perpetual  injunction 
against  a  judgment  for  slander  that  at  the  time  of  speaking  the 
defamatory  words,  and  when  the  judgment  was  obtained,  the 
defendant  was  insane  or  deranged  on  the  subject  to  which  such- 
words  related.5 

XV.  Bakebuptcy. 

A  person  who  is  so  insane  as  to  be  wholly  incapable  of  manag- 
ing his  affairs  cannot,  while  in  that  condition,  commit  an  act  for 
which  he  can  be  forced  into  bankruptcy  by  his  creditors  against 
the  objection  of  his  guardian.6  But  a  lunatic  may  be  adjudged 
a  bankrupt  under  the  direction  of  his  committee  acting  with  the 
consent  of  the  court  in  lunacy.7  The  jurisdiction  of  a  court  in 
lunacy  over  the  property  of  a  person  found  to  be  a  lunatic  can- 
not be  ousted  by  a  subsequent  adjudication  in  bankruptcy  with- 
out the  consent  of  the  court,  and  the  trustee  in  bankruptcy  can 
take  the  property  only  subject  to  the  jurisdiction  in  lunacy.8 
And  it  cannot  be  devested  by  a  voluntary  settlement  so  as  to 
enable  the  trustee  to  stand  in  the  place  of  the  beneficiary,  as  such 
settlement  is  void  for  all  purposes.9 

1  McClain  v.  Davis,  77  Incl.  419. 

8  Litehfield's  Appeal,  28  Conn.  127,  73  Am.  Dec.  662. 
s  Cravrford  v.  Thomson,  161  El  161. 

4  Cravrford  v.  Thomson,  161  BL  166. 

5  Horner  v.  Marshall,  5  Muni.  466. 

6  Ee  Marvin,  1  Dill.  178. 

'<  Ee  Farnham  [1895]  2  Ch.  799. 
f  Ee  Farnham  [1895]  2  Ch.  799. 

9  Ee  Farnham  [1895]  2  Ch.  799. 


LEGAL    ADJUDICATIONS    IN    CIVIL   CASE8.  403 

XVI.  Insurance. 
§  1.  Insanity  as  a  hi" each  of  warranty. 

Insanity  is  not,  as  a  matter  of  law,  a  breach  of  warranty  of 
sound  health  in  an  application  for  an  insurance  policy.1  Thus, 
the  failure  of  an  insurance  agent  who  applies  for  insurance  upon 
his  own  life  to  state  in  the  application  that  he  had  been  insane 
will  not  invalidate  the  policy  where  he  had  apparently  recovered, 
unless  he  knew  that  it  was  material,  although  the  agent  had  been 
instructed  to  be  cautious  and  not  insure  insane  persons2.  The 
question  as  to  the  extent  to  which  mental  disturbances  will  destroy 
or  interfere  with  the  functions  of  the  body  depends  upon  the 
circumstances  of  each  case,  and  is  a  question  of  fact.3  And  the 
question  as  to  whether  there  was  a  breach  of  warranty  in  a  policy 
providing  that  the  company  should  not  be  liable  if  the  assured 
died  from  suicide  committed  within  two  years  is  one  of  fact  for 
the  jury,  where  the  evidence  showed  that  the  assured  shot  himself 
intending  that  death  should  result  and  there  was  also  evidence 
tending  to  show  that  he  was  insane  at  the  time.4 

And  evidence  in  an  action  in  which  there  was  a  breach  of  war- 
ranty in  stating  that  none  of  the  relatives  of  the  insured  had  died 
insane,  given  by  the  widow  of  the  father  of  the  insured,  that  her 
husband  needed  quiet  and  treatment  and  went  to  an  insane  hos- 
pital, but  was  not  confined  with  the  patients,  and  that  he  com- 
plained of  pains  in  his  head  and  had  been  hurt  there  when  a  child, 
and  that  he  always  seemed  to  know  what  was  going  on,  and  proof 
that  his  brain  was  in  a  hardened  state  at  death, — is  sufficient  to  send 
to  the  jury  the  question  whether  the  statement  that  the  father 
had  died  of  brain  disease  caused  by  a  hurt  was  true.5  So,  evi- 
dence of  the  records  of  a  probate  court  determining  the  father  of 
the  insured  to  be  insane  and  ordering  him  to  be  sent  to  a  lunatic 
asylum,  and  records  of  the  asylum  showing  his  admission  therein, 
are  not  conclusive  in  an  action  upon  a  policy  in  the  application 
for  which  he  had  stated  that  no  member  of  his  family  had  been 

1  Jacklin  v.  National  Life  Asso.  75  Hun,  595. 

2  Mallory  v.  Travelers'  Ins.  Co.  47  N.  Y.  52,  7  Am.  Eep.  410. 

3  Jacklin  v.  National  Life  Asso.  75  Hun,  595. 

4  Meacham  v.  New  York  State  Mut.  Ben.  Asso.  120  N.  Y.  237. 

6  Newton  v.  Mutual  Benefit  Life  Ins.  Co.  15  Hun,  595,  Affirmed  76  N.  Y. 
426,  32  Am.  Eep.  335. 


404  MEDICAL    JURISPRUDENCE   OF    INSANITY. 

insane.1  But  such  evidence,  together  with  proof  that  the  father 
had  received  a  head  injury  when  a  child,  and  that  there  were 
signs  of  weakened  mental  powers  until  death,  and  that  he  had 
hardening  of  the  brain,  does  not  authorize  the  court  to  determine 
the  statement  in  an  application  to  be  a  breach  of  warranty,  as  a 
matter  of  law,  where  it  appears  that  the  father  knew  what  was 
going  on  until  his  death,  and  was  sent  to  an  asylum  for  quiet  treat- 
ment.2 A  question  in  an  application  for  insurance,  as  to  whether 
the  relatives,  including  parents,  brothers,  or  sisters  of  the  applicant, 
had  died  of  or  been  afflicted  with  insanity,  epilepsy,  or  other  her- 
editary diseases,  includes  insanity  of  a  hereditary  character  only, 
and  does  not  apply  to  accidental  or  temporary  insanity.  And  an 
answer  in  the  negative  does  not  constitute  a  breach  of  warranty 
because  one  of  such  relatives  died  while  insane  from  a  temporary 
or  accidental  cause.3 

§  2.  Homicide  ~by  insane  act. 

The  killing  of  the  insured  by  an  insane  person  is  not  within  a 
condition  in  an  insurance  policy  invalidating  it  if  death  should 
result  from  intentional  injuries  inflicted  by  the  insured  or  any 
other  person;4  and  the  killing  of  the  insured  by  the  beneficiary 
in  a  policy  under  such  circumstances  that  it  would  be  murder  if 
he  were  sane  does  not  forfeit  it  or  bar  a  suit  for  the  money  where 
he  was  insane.5 

•  §  3.  Insanity  as  affecting  suicide. 

The  general  rule  is  that  the  death  of  an  insured  person  by  his 
own  hand  when  non  compos  mentis  is  as  much  the  result  of  dis- 
ease as  death  by  fever  or  consumption.6  And  that  self-killing, 
suicide,  or  dying  by  one's  own  hand  or  self-inflicted  injuries  can- 
not be  predicated  on  the  act  of  an  insane  person,  as  in  either  case 
it  is  not  his  deliberate  act,7  the  words  "  suicide  "  and  "  die  by  his 

1  Newton  v.  Mutual  Benefit  Life  Ins.  Co.  76  N.  Y.  426,  32  Am.  Eep.  335. 

2  Newton  v.  Mutual  Benefit  Life  Ins.  Co.  76  N.  Y.  429,  32  Am.  Bep.  335. 

3  Newton  v.  Mutual  Benefit  Life  Ins.  Co.  15  Hun,  595,  AfFd  in  76  N.  Y. 
426,  32  Am.  Bep.  335;  Peasley  v.  Safety  Deposit  Life  Ins.  Co.  15  Hun,  227. 

4  Marceau  v.  Travelers'  Ins.  Co.  101  Cal.  338. 

6  Holdom  v.  Ancient  Order  of  United  Workmen,  159  HI.  619,  31 L.  B.  A.  67. 

6  John  Hancock  Mut.  L.  Ins.  Co.  v.  Moore,  34  Mick.  41. 

'  Accident  Ins.  Co.  v.  Crandal,  120  U.  S.  527,  30  L.  ed.  740;  Knicker- 


LEGAL   ADJUDICATIONS    IN    CIVIL    CASES.  405 

own  hand"  meaning  the  same  thing.1  And  the  policy  is  not 
rendered  void  by  the  death  of  the  assured  by  his  own  hand  while 
insane  by  any  principle  of  public  policy  in  the  absence  of  any 
provisions  to  that  effect."  The  act  of  self-destruction  which  will 
avoid  an  insurance  policy  containing  a  condition  against  liability  if 
the  assured  shall  die  by  his  own  hand  must  be  voluntary.5  And  it 
must  not  have  been  an  insane  act  and  the  immediate  consequence 
and  result  of  insanity.4  And  suicide  committed  while  the  assured 
understood  as  a  man  of  sound  sense  what  consequences  would 
follow  from  his  act  to  himself,  his  character,  his  family,  and  others, 
and  had  ability  to  understand  the  wrongfulness  of  the  act  as  a 
sane  man  would,  is  to  be  regarded  as  the  act  of  a  sane  man  which 
will  invalidate  the  policy.6  And  suicide  by  one  in  possession  of 
his  ordinary  reasoning  faculties,  from  pride,  anger,  jealousy,  shame, 
dread  of  exposure,  fear  of  poverty,  or  a  desire  to  escape  from  the 
ills  of  life,  is  within  such  a  proviso.6  Death  from  an  overdose  of 
laudanum  by  mistake,  however,  is  not  within  a  condition  against  sui- 
cide, though  the  mistake  might  have  been  caused  by  intoxication.7 
So,  an  insurance  policy  containing  the  condition  sometimes 
inserted  in  English  policies,  that  it  shall  be  void  if  the  assured 
shall  commit  suicide,  unless  the  policy  is  assigned  to  other  parties 
for  valuable  consideration  before  death,  is  not  invalidated  as  against 

bocker  Life  Ins.  Co.  v.  Peters,  42  Md.  414;  Eastabrook  v.  Union  Mut.  L. 
Ins.  Co.  54  Me.  224,  89  Am.  Dec.  743;  Blackstone  v.  Standard  Life  &  Acci. 
Ins.  Co.  74  Mich.  592,  3  L.  E.  A.  486;  Phillips  v.  Louisiana  Equitable  L. 
Ins.  Co.  26  La.  Ann.  404,  21  Am.  Eep.  549;  Life  Asso.  of  America  v. Waller, 
57  Ga.  533;  Breasted  v.  Parmer's  Loan  &  T.  Co.  8  N.  Y.  299,  59  Am.  Dec. 
482;  Scheffer  v.  National  L.  Ins.  Co.  25  Minn.  534;  Tollmar  v.  Germania 
L.  Ins.  Co.,  cited  in  Bliss  on  Life  Insurance,  §  242;  Horn  v.  Anglo-Austral- 
ian &  U.  Family  L.  Ins.  Co.  7  Jur.  N.  S.  673. 

1  Moore  v.  Connecticut  Mut.  L.  Ins.  Co.  1  Plipp.  363;  Mutual  L.  Ins.  Co. 
v.  Wiswell,  56  Kan.  765,  35  L.  B.  A.  258. 

5  Horn  v.  Anglo-Australian  &  U.  Family  L.  Ins.  Co.  30  L.  J.  Ch.  511, 
4  L.  T.  N.  S.  142,  9  Week.  Eep.  359. 

3  St.  Louis  Mutual  Life  Ins.  Co.  v.  Graves,  6  Bush,  268 

4  Hathaway  v.  National  L.  Ins.  Co.  48  Vt.  336. 

6  Bitter  v.  Mutual  L.  Ins.  Co.  70  Fed.  Bep.  958. 

6  Mutual  L.  Ins.  Co.  v.  Terry,  82  U.  S.  15  Wall.  580,  21  L.  ed.  236;  Char- 
ter Oak  L.  Ins.  Co.  v.  Eodel,  95  U.  S.  285,  24  L.  ed.  433;  Moore  v.  Con- 
necticut Mut.  L.  Ins.  Co.  1  Flipp.  363. 

7  Equitable  L.  Assur.  Soc.  v.  Paterson,  41  Ga.  338,  5  Am.  Eep.  535. 


406  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

an  assignee  by  the  death  of  the  insured  by  suicide  while  of  unsound 
mind  ; '  nor  would  it  be  void  where  the  policy  was  pledged  as  col- 
lateral security ; 2  and  the  rule  is  the  same  though  the  insurers  are 
the  ones  to  whom  the  policy  is  pledged.3  And  a  letter  written 
by  the  insured  to  a  creditor  charging  the  policy  for  a  floating 
balance  due  him,  made  three  years  previous  to  his  death  by  his 
own  hand,  is  sufficient  to  constitute  an  assignment  thereof.4  But 
a  policy  assigned  to  trustees  under  a  deed  of  settlement,  the  assured 
covenanting  to  pay  the  premiums  and  to  perform  such  acts  as  will 
be  necessary  to  keep  the  policy  on  foot,  is  invalidated  where  the 
insured  afterwards  intentionally  destroyed  his  life,  though  he  was 
not  capable  of  judging  between  right  and  wrong.5 

§  4.  Test  of  consciousness  and  intent. 

The  rule  in  England  is  that  a  condition  in  a  life  insurance  pol- 
icy against  liability  in  case  of  death  by  suicide  includes  all  cases 
of  voluntary  self-destruction  whether  the  assured  was  sane  or  not 
at  the  time,6  the  question  being  whether  or  not  the  act  was  done 
voluntarily  and  not  from  confusion  of  the  senses.7  But  to  avoid 
a  policy  containing  such  a  clause  on  the  ground  of  insanity  it  must 
appear  that  the  assured  could  distinguish  between  right  and  wrong 
to  the  extent  of  being  able  to  understand  and  appreciate  the  nature 
and  quality  of  the  act  he  was  doing.5  And  a  person  is  not  neces- 
sarily insane  who  voluntarily  commits  suicide,  intending  to  kill 
himself,  at  a  time  when  he  is  considered  in  general  terms  to  be  in- 
capable of  distinguishing  between  right  and  wrong,  and  such  in- 
capability might  exist  because  of  want  of  requisite  knowledge, 
experience,  or  reasoning  powers  equal  to  the  occasion,  though  quite 

1  Dufaiir  v.  Professional  L.  Assur.  Co.  25  Beav.  599,  4  Jur.  X.  S.  841,  27 
L.  J.  Ch.  817. 

2  White  v.  British  Empire  Mut.  L.  Assur.  Co.  19  L.  T.  N.  S.  306,  17 
Week.  Bep.  26,  L.  E,  7  Eq.  Cas.  394. 

3  White  v.  British  Empire  Mut.  L.  Assur.  Co.  19  L.  T.  N.  S.  306,  17 
Week.  Bep.  26,  L.  B.  7  Eq.  Cas.  394. 

4  Jones  v.  Consolidated  Invest.  Assur.  Co.  26  Beav.  256. 

5  Dorcuay  v.  Borradaile,  5  C.  B.  380,  11  Jur.  231. 

6  Schwabe  v.  Clift,  2  Car.  &  K.  134,  on  Appeal,  3  Man.  G  &  S.  437, 17  L. 
J.  C.  P.  2 ;  Borradaile  v.  Hunter,  5  Man.  &  G.  639. 

•  Stormont  v.  Waterloo  L.  <£  C.  Assur.  Co.  1  Fost.  &  F.  22. 
8  Sclrwabe  v.  Clift,  2  Car.  &  K.  134,  on  Appeal,  3  Man.  G.  &  S.  437,  17  L. 
J.  C.  P.  2. 


LEGAL    ADJUDICATIONS    IN    CIVIL   CASES.  407 

sufficient  to  sustain  the  character  of  a  man  of  sense  and  under- 
standing on  an  ordinary  occasion." 

The  same  test  has  been  adopted  by  many  of  the  American 
states.  Tims,  a  life  insurance  policy  containing  a  condition  that 
it  shall  be  void  if  the  assured  shall  die  by  his  own  hand  is  avoided 
by  suicide  committed  when  he  understood  the  nature  of  the  act  and 
intended  to  take  his  own  life  though  he  may  have  been  insane,2  and 
though  he  was  not  capable  of  judging  between  right  and  wrong,3 
or  of  understanding  or  appreciating  the  nature  and  quality  of  his 
act.4  And  a  policy  containing  such  a  condition  is  invalidated  by 
suicide  where  the  assured  exercised  volition  and  was  capable  of 
forming  an  intention,  and  committed  the  act  with  full  knowledge 
that  death  would  follow,  his  mind  concurring  in  the  act.6  And 
an  act  of  self-destruction  will  invalidate  an  insurance  policy  con- 
taining such  a  condition,  where  he  had  sufficient  mind,  reason,  and 
judgment  to  rationally  consider  and  determine  whether  he  pre- 
ferred to  die  or  to  live,  though  his  mind  was  to  some  extent 
unsound  ; "  and  such  a  policy  is  not  avoided  where  there  is  no 
evidence  of  delirium  or  madness  or  that  the  act  was  involuntary.7 

§  5.  Test  of  capacity  to  understand  moral  character  of  the  act. 

The  rule  adopted  by  the  United  States  Supreme  Court,  and 
followed  by  a  number  of  the  state  courts,  is  that  the  intentional 
killing  of  himself  by  the  assured  when  his  reasoning  faculties  are 
so  far  impaired  by  insanity  that  he  is  unable  to  understand  the 
moral  character  of  his  act  is  not  suicide,  self-destruction,  or  dying 
by  his  own  hand,  within  the  meaning  of  such  words  in  a  condi- 

1  Dormay  v.  Borradaile,  10  Beav.  335. 

2  Dean  v.  American  Mut.  L.  Ins.  Co.  4  Allen,  96 ;  Weed  v.  Mutual  Ben.  L. 
Ins.  Co.  70  N.  Y.  561;  Van  Zandt  v.  Mutual  Ben.  L.  Ins.  Co.  55  N.  Y.  169, 
14  Am.  Eep.  215;  Mutual  Ben.  L.  Ins.  Co.  v.  Daviess,  87  Ky.  541;  Hatha- 
way v.  National  L.  Ins.  Co.  48  Vt.  336;  Boorman  v.  Northwestern  Mut. 
Belief  Asso.  90  Wis.  144;  Gay  v.  Union  Mut.  L.  Ins.  Co.  9  Blatclif.  142; 
Zimmerman  v.  Masonic  Aid  Asso.  75  Fed.  Eep.  236. 

3  Gay  v.  Union  Mut.  L.  Ins.  Co.  9  Blatchf .  142. 

4  Nimick  v.  Mutual  Ben.  L.  Ins.  Co.  3  Brewst.  502;  Mutual  Ben.  L.  Ins. 
Co.  v.  Daviess,  87  Ky.  541;  Pierce  v.  Travelers'  L.  Ins.  Co.  34  Wis.  389; 
Gay  v.  Union  Mut.  L.  Ins.  Co.  9  Blatchf.  142. 

5  Weed  v.  Mutual  Ben.  L.  Ins.  Co.  70  N.  Y.  561. 

6  Hathaway  v.  National  L.  Ins.  Co.  48  Vt.  336. 

'  Cooper  v.  Massachusetts  Mut.  L.  Ins.  Co.  102  Mass.  227,  3  Am.  Eep.  451. 


408  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

tion  in  an  insurance  policy  against  liability  in  such  cases,  though 
he  understood  the  physical  nature,  consequences,  and  effect  of  his 
act.1  And  a  recovery  on  such  a  policy  is  not  barred  where  the 
judgment  of  the  assured  was  entirely  overpowered  and  he  was 
unable  to  distinguish  between  right  and  wrong,  though  he  com- 
mitted the  act  intending  to  take  his  life  and  knowing  that  death 
would  result.2  And  suicide  is  not  within  such  a  condition  where 
the  assured  was  so  insane  as  to  render  him  incapable  of  forming 
a  rational  judgment  with  respect  to  the  act  of  self-destruction ; s 
or  when  his  reason,  conscience,  and  will  were  overpowered.4  If 
the  assured  possessed  sufficient  mental  capacity  to  form  an  intelli- 
gent intent  to  take  his  own  life,  and  did  so  being  conscious  that 
the  act  he  was  about  to  commit  would  effect  that  object,  it  avoids 
the  policy  ;  but  if  his  mind  was  so  far  impaired  that  he  was  inca- 
pable of  forming  such  an  intent,  and  was  not  conscious  of  the 
effect  of  his  actions,  the  policy  remains  in  full  force.6  So,  in  order 
to  work  a  forfeiture  of  an  insurance  policy  under  a  clause  except- 
ing suicide,  the  act  must  have  been  performed  voluntarily  and 
with  intent  upon  the  part  of  the  assured  to  end  his  life,  and  not 
from  any  uncontrollable  impulse  resulting  from  insanity.6  And 
in  case  of  suicide  where  the  insured  is  thus  impelled  the  condition 

1  Connecticut  Mut.  L.  Ins.  Co.  v.  Aikens,  150  U.  S.  468,  37  L.  ed.  1148; 
Mutual  L.  Ins.  Co.  v.  Terry,  82  U.  S.  15  Wall.  580,  21  L.  ed.  236;  Man- 
hattan L.  Ins.  Co.  v.  Broughton,  109  U.  S.  121,  27  L.  ed.  878;  Charter  Oak 
L.  Ins.  Co.  v.  Eodel,  95  U.  S.  285,  24  L.  ed.  433;  Gay  v.  Union  Mut.  L. 
Ins.  Co.  9  Blatchf .  142;  Bitter  v.  Mutual  L.  Ins.  Co.  70  Fed.  Bep.  954;  Waters 
v.  Connecticut  Mut.  L.  Ins.  Co.  2  Fed.  Bep.  892;  New  Honie  L.  Asso.  v. 
Hagler,  29  HI.  App.  437;  Michigan  Mutual  L.  Ins.  Co.  v.  Naugle,  130  Ind. 
79;  Blackstone  v.  Standard  L.  &  Acci.  Ins.  Co.  74  Mich.  592,  3  L.  B.  A.  486; 
Schultz  v.  Insurance  Co.  40  Ohio  St.  217,  48  Am.  Bep.  676;  Phadenhauer 
v.  Germania  L.  Ins.  Co.  7  Heisk.  567,  19  Am.  Bep.  623;  American  L.  Ins. 
Co.  v.  Isett,  74  Pa.  176. 

2  Connecticut  Mut.  L.  Ins.  Co.  v.  Groom,  86  Pa.  96,  27  Am.  Bep.  689. 

3  Terry  v.  Life  Ins.  Co.  1  Dill.  403;  Moore  v.  Connecticut  Mut.  L.  Ins. 
Co.  1  Flipp.  363;  Hiatt  v.  Mutual  L.  Ins.  Co.  2  Dill.  572,  note. 

4  Knickerbocker  L.  Ins.  Co.  v.  Peters,  42  Md.  414. 

5  American  L.  Ins.  Co.  v.  Isett,  74  Pa.  176. 

6  Blackstone  v.  Standard  L.  &  A.  Ins.  Co.  74  Mich.  592,  3  L.  E,  A.  486; 
Phillips  v.  Louisiana  Equitable  L.  Ins.  Co.  26  La.  Ann.  404,  21  Am.  Bep. 
549;  Moore  v.  Connecticut  Mut.  L.  Ins.  Co.  1  Flipp.  363. 


LEGAL   ADJUDICATIONS    IN    CIVIL   CASES.  409 

does  not  attach  and  the  insurer  remains  liable.1  And  knowledge 
that  death  will  ensue,  and  deliberation  on  the  part  of  the  assured, 
are  not  conclusive  as  to  his  responsibility  or  power  to  control  his 
actions,  as  such  knowledge  and  deliberation  are  consistent  with 
the  existence  of  an  insane  impulse  which  his  reason  could  not 
resist,2  the  doctrine  that  suicide  caused  by  irresistible  impulses 
will  not  relieve  the  insurer  has  been  adopted  in  the  New  York 
courts,3  though  they  hold  to  the  doctrine  that  the  test  is  that  of 
conscience  and  intent  rather  than  capacity  to  understand  the  moral 
character  of  the  act,  the  rule  being  that  a  policy  is  invalidated  by 
suicide  unless  the  assured  was  so  mentally  disordered  as  not  to 
understand  that  the  act  he  committed  would  cause  his  death,  or 
unless  he  committed  it  under  the  influence  of  some  insane  impulse 
which  he  could  not  resist.  And  it  is  not  sufficient  that  his  mind 
was  so  impaired  that  he  was  not  conscious  of  the  moral  obliquity 
of  the  act.4 

A  man  is  insane  so  as  to  prevent  a  forfeiture  of  an  insurance 
policy  conditioned  against  death  by  his  own  hand  where  he  is  not 
capable  of  understanding  that  his  design  is  unlawful  or  that  the 
act  is  morally  wrong,  or  where,  understanding  this,  he  is  unable 
to  control  his  conduct  in  the  light  of  such  knowledge.6  And  a 
warranty  in  an  application  for  insurance  that  the  applicant  will 
not  die  by  his  own  hand  is  of  the  same  effect  with  relation  to 
suicide  as  a  similar  condition  in  the  policy,  and  suicide  is  not  death 
by  his  own  hand  within  such  a  warranty  where  at  the  time  the- 

1  Charter  Oak  L.  Ins.  Co.  v.  Eodel,  95  U.  S.  285,  24  L.  ed.  433;  Mutual 
L.  Ins.  Co.  v.  Terry,  82  U.  S.  15  Wall.  580,  21  L.  ed.  236;  Moore  v.  Con- 
necticut Mut.  L.  Ins.  Co.  1  Flipp.  363;  Gay  v.  Union  Mut.  L.  Ins.  Co.  9 
Blatchf.  142;  Waters  v.  Connecticut  Mut.  L.  Ins.  Co.  2  Fed.  Eep.  892; 
New  Home  L.  Asso.  v.  Hagler,  29  HI.  App.  437;  Suppiger  v.  Covenant 
Mut.  Ben.  Asso.  20  111.  App.  595;  Phillips  v.  Louisiana  Equitable  L.  Ins. 
Co.  26  La.  Ann.  404;  Blackstone  v.  Standard  L.  &  A.  Ins.  Co.  74  Mich. 
592,  3  L.  E.  A.  486;  Hathaway  v.  National  L.  Ins.  Co.  48  Vt.  336;  American 
L.  Ins.  Co.  v.  Isett,  74  Pa.  176. 

2  Charter  Oak  L.  Ins.  Co.  v.  Eodel,  95  U.  S.  285,  24  L.  ed.  433. 

«  Meacham  v.  State  Mut.  Ben.  Asso.  27  N.  Y.  Wk.  Dig.  423;  Van  Zandt 
v.  Mutual  Ben.  L.  Ins.  Co.  55  N.  Y.  169,  14  Am.  Eep.  215;  Newton  v. 
Mutual  Ben.  L.  Ins.  Co.  76  N.  Y.  426,  32  Am.  Eep.  335. 

4  Van  Zandt  v.  Mutual  Ben.  L.  Ins.  Co.  55  N.  Y.  169,  14  Am.  Eep.  215. 

6  Waters  v.  Connecticut  Mut.  L.  Ins.  Co.  2  Fed.  Eep.  892. 


410  »       AIEDICAL    JURISPRUDENCE    OF    INSANITY. 

reason  and  faculty  of  the  assured  were  so  far  impaired  that  he 
was  unable  to  understand  the  moral  character,  general  nature, 
consequences,  and  effect  of  the  act,  or  was  impelled  thereto  by  an 
insane  impulse  which  he  had  not  the  power  to  resist.1 

§  6.    Test  of  responsibility  for  criminal  acts. 

The  rule  has  been  laid  down  that  as  suicide  is  a  criminal  act 
the  rule  of  responsibility  for  criminal  acts  should  be  applied  to 
its  effect  upon  an  insurance  policy  containing  a  condition  against 
self-destruction,  and  that  suicide  which  will  avoid  such  a  policy 
must  have  been  committed  where  there  was  mind  enough  to  form 
a  criminal  intent ; 2  the  defense  of  insanity  to  excuse  suicide  being 
placed  upon  the  same  ground,  so  far  as  the  question  of  the  moral 
character  of  the  act  is  concerned,  as  a  defense  for  murder,  the 
test  being  the  capability  of  the  assured  to  judge  between  right 
and  wrong.3  The  question  is  not  whether  the  party  was  sane  or 
insane,  but  whether  the  act  of  self-destruction  was  a  criminal, 
intentional,  and  voluntary  act,  designed  by  him  to  take  life,  and 
whether  the  assured  was  competent  to  realize  the  consequences 
•of  the  means  employed.4  And  the  policy  will  be  held  void 
unless  it  be  clearly  shown  that  the  mental  condition  of  the  assured 
was  such  as  to  render  him  legally  and  morally  irresponsible  for  his 
acts.8  It  has  been  held,  however,  that  to  understand  the  general 
nature,  consequences,  and  effect  of  the  act  means  more  than 
merely  to  understand  the  act  by  which  life  was  taken,  covering 
suicide  and  its  effect  as  an  accomplished  fact.6 

§  7.    Suicide  under  conditions  against  self-destruction,  sane  or 

insane. 
A  life  insurance  company  may  lawfully  stipulate  in  its  policy 
that  it  shall  be  forfeited  in  the  event  that  the  insured  shall  take 

1  Mutual  L.  Ins.  Co.  v.  Leubrie,  71  Fed.  Eep.  843,  38  U.  S.  App.  37. 

5  Phadenhauer  v.  Germania  L.  Ins.  Co.  7  Heisk.  567,  19  Am.  Rep.  623; 
Beyley  v.  Alexander,  East's  Xotes,  Cas.  79,  Morley's  India  Dig.  352. 

3  Moore  v.   Connecticut  Mut.   L.   Ins.    Co.    1   Flipp.  363;   Breasted  v. 
Farmer's  Loan  &  T.  Co.  8  N.  T.  299,  59  Am.  Dec.  482. 

4  Fowler  v.  Mutual  L.  Ins.  Co.  4  Lans.  202. 

6  Merritt  v.  Cotton  States  L.  Ins.  Co.  55  Ga.  103.     And  see  Life  Asso.  of 
America  v.  Waller,  57  Ga.  533. 

6  Moore  v.  Connecticut  Mut.  L.  Ins.  Co.  1  Flipp.  363. 


LEGAL    ADJUDICATIONS    IN    CIVIL   CASES.  411 

his  life  while  insane.1  And  a  policy  limiting  the  payment  in 
case  of  insane  suicide  to  the  legal  reserve  is  valid  when  not  pro- 
hibited by  law,  if  the  reserve  is  ascertainable.2  And  a  clause  in 
an  insurance  policy  invalidating  it  if  the  assured  shall  die  by  his 
own  hand,  sane  or  insane,  covers  all  conscious  acts  of  the  assured 
by  which  death  by  his  own  hands  is  accomplished,  whether  he 
was  at  the  time  sane  or  insane.  If  the  act  was  done  with  the 
purpose  of  self-destruction  it  is  immaterial  whether  or  not  he  had 
a  conception  of  the  wrong  involved  in  it.3 

The  question  whether  he  was  capable  of  appreciating  the  moral 
nature  and  quality  of  his  purpose  is  not  relevant  further  than  it 
might  help  to  illustrate  the  extent  of  his  capacity  to  understand 
the  physical  character  of  his  act.4  And  if  the  insured  is  insane 
at  the  time  of  taking  his  life  an  option  that  the  insurer  may  pay 
the  sum  insured  or  refund  the  premiums  with  interest  according 
to  the  equities  of  the  case  is  valid  and  may  be  exercised  by  the 
insurer.5  And  the  same  rule  applies  where  the  insured  is  tem- 
porarily insane.6  No  recovery  can  be  had  by  an  insured  person 
who  kills  himself  under  a  policy  conditioning  against  self-destruc- 
tion whether  sane  or  insane  if  he  committed  the  fatal  act  other- 

1  Supreme  Commandery  K.  of  G.  E.  v.  Ainsworth,  71  Ala.  436,  46  Am. 
Eep.  332;  VanZandt  v.  Mutual  Beu.  L.  Ins.  Co.  55  N.  Y.  169,  14  Am.  Eep. 
215;  De  Gogorza  v.  Knickerbocker  L.  Ins.  Co.  65  N.  Y.  232;  Bigelow  v. 
Berkshire  L.  Ins.  Co.  93  U.  S.  284,  23  L.  ed.  918;  Chapman  v.  Republic 
L.  Ins.  Co.  6Biss.  238;  Pierce  v.  Travelers' L.  Ins.  Co.  34  Wis.  389;  Knicker- 
bocker L.  Ins.  Co.  v.  Peters,  42  Md.  414,  7  Chicago  Leg.  News,  421;  Kelly 
t.  Mutual  L.  Ins.  Co.  75  Fed.  Rep.  637. 

2  Prey  v.  Germania  L.  Ins.  Co.  56  Mich.  29;  Salentine  v.  Mutual  Ben. 
Ii.  Ins.  Co.  24  Fed.  Rep.  159. 

3  Streeter  v.  Western  Union  Mut.  L.  &  A.  Soc.  65  Mich.  199;  Tritchler 
v.  Keystone  Mut.  Ben.  Asso.  5  Northampton  Co.  Rep.  301;  De  Gogorza  v. 
Knickerbocker  L.  Ins.  Co.  65  N.  Y.  232;  Bigelow  v.  Berkshire  L.  Ins.  Co. 
93  U.  S.  284,  23  L.  ed.  918;  Travelers  Ins.  Co.  v.  McConkey,  127  U.  S. 
661,  32  L.  ed.  308;  Chapman  v.  Republic  L.  Ins.  Co.  6  Biss.  238;  Pierce 
v.  Travelers'  L.  Ins.  Co.  34  Wis.  389;  Adkins  v.  Columbia  L.  Ins.  Co.  70  Mo. 
27,  35  Am.  Rep.  410;  Knickerbocker  L.  Ins.  Co.  v.  Peters,  42  Md.  414,  7 
Chicago  Leg.  News,  421;   Sabin  v.  Senate  of  Nat.  Union,  90  Mich.  177. 

4  Pierce  v.  Travelers'  L.  Ins.  Co.  34  Wis.  389. 

4  Salentine  v.  Mutual  Ben.  L.  Ins.  Co.  24  Fed.  Rep.  159. 
6  Dennis  v.  Union  Mut.  L.  Ins.  Co.  84  Cal.  570. 


412  MEDICAL  JURISPRUDENCE    OF    INSANITY. 

wise  than  accidentally.1  And  a  condition  in  a  life  insurance  pol- 
icy against  liability  in  case  of  self-destruction,  felonious  or  other- 
wise, is  equivalent  to  a  condition  against  liability  whether  sane 
or  insane.2  But  the  word  "  otherwise "  in  a  condition  in  an 
insurance  policy  that  it  shall  be  void  in  case  the  assured  shall  die 
by  his  own  hand  or  act,  voluntarily  or  otherwise,  cannot  be 
.deemed  to  have  been  used  in  the  limited  sense  of  applying  to 
insanity  only,  and  such  condition  is  too  vague  and  intangible  to 
admit  of  practical  application,  and  therefore  will  not  be  enforced. 
And  a  proviso  that  the  policy  shall  be  void  if  under  any  circum- 
stances the  insured  shall  die  by  his  own  hand  is  not  enlarged  in 
meaning  by  the  use  of  the  phrase  "  under  any  circumstances  "  so  as 
to  include  every  case  of  unintentional  suicide,  whether  criminal  or 
not,  or  committed  by  a  person  sane  or  insane,  and  the  clause  must 
be  disregarded  as  too  general  and  uncertain  to  serve  any  purpose  in 
the  construction  of  the  statute.4  The  rule  has  been  laid  down  in 
several  recent  cases,  however,  that  suicide  will  prevent  a  recovery 
upon  such  a  policy  even  though  the  insured  killed  himself,  unin- 
tentionally, while  insane.6 

But  it  has  been  held  that  a  clause  containing  a  condition  against, 
liability  in  case  of  the  death  of  the  assured  by  his  own  act  and 
intentions  whether  sane  or  insane  is  not  invalidated  by  his  suicide 
while  completely  insane,6  or  where  his  death  is  accidental.7  And 
an  accidental  pistol  wound  in  the  foot  of  the  insured  causing  teta- 
nus with  great  bodily  pain  and  delirium  may  be  found  to  be  the 

1  Biley  v.  Hartford  L.  &  A.  Ins.  Co.  25  Fed.  Eep.  315;  Chapman  v. 
Republic  L.  Ins.  Co.  6  Biss.  238. 

2  Eiley  v.  Hartford  L.  &  A.  Ins.  Co.  25  Fed.  Eep.  315;  Jacobs  v.  National 
L.  Ins.  Co.  1  McArth.  632. 

3  Jacobs  v.  National  L.  Ins.  Co.  1  McArth.  632;  Penfold  v.  Universal  L. 
Ins.  Co.  85  K  Y.  317,  39  Am.  Eep.  660. 

*  Schultz  v.  Insurance  Co.  40  Ohio  St.  217,  48  Am.  Eep.  676. 

5  Sparks  v.  Knights  Templars  &  Masons  L.  Indemnity  Co.  1  Mo.  App.  Eep. 
334;  Union  C.  L.  Ins.  Co.  v.  Hollo-well,  14  Ind.  App.  611;  Scarth  v.  Secur- 
ity Mut.  L.  Soc.  75  Iowa,  346:  Bachmeyer  v.  Mutual  Eeserve  Fund  L. 
Asso.  82  Wis.  255,  87  Wis.  328;  Streeter  v.  Western  Union  Mut.  L.  &  Acci. 
Soc.  65  Mich.  199.  And  see  Zimmerman  v.  Masonic  Aid  Asso.  75  Fed. 
Eep.  236;  Kelley  v.  Mutual  L.  Ins.  Co.  75  Fed.  Eep.  637. 

6  Chapman  v.  Bepublic  L.  Ins.  Co.  6  Biss.  238. 

1  Keels  v.  Mutual  Eeserve  Fund  L.  Asso.  29  Fed.  Eep.  198. 


LEGAL    ADJUDICATIONS    IN    CIVIL    OASES.  413 

proximate  cause  of  death  within  the  meaning  of  such  a  policy 
where  he  cuts  his  throat  in  a  period  of  delirium  which  is  uncon- 
trollable.1 The  presumption  against  suicide  that  a  person  who 
took  poison  took  it  unintentionally  or  by  mistake,  however,  is  a 
presumption  of  fact  which  is  disputable,  and  stands  for  the  fact 
in  an  action  on  a  policy  conditioning  against  liability  in  case  of 
suicide  whether  sane  or  insane  only  until  overcome  by  a  prepon- 
derance of  the  evidence.2  And  a  recovery  upon  an  insurance 
policy  so  conditioning,  where  the  insured  died  by  poison  adminis- 
tered to  himself  by  mistake  or  unintentionally,  may  be  had.3 

§  8.  Suicide  as  affecting  accident  insurance. 

Suicide  committed  by  an  insane  person  who  was  not  conscious 
•of  what  he  was  doing  constitutes  death  effected  through  external, 
violent,  and  accidental  means  within  the  meaning  of  an  accident 
policy  insuring  against  injuries  thus  effected ;  *  and  is  not  within 
a  condition  in  such  a  policy  that  the  insurance  shall  not  extend 
to  any  bodily  injury  happening  directly  or  indirectly  in  conse- 
quence of  bodily  infirmities  or  disease."  And  death  of  an  insured 
person  from  being  seized  with  an  epileptic  fit  and  falling  down 
in  a  stream  of  water  while  fording  it,  and  drowning,  is  death 
from  personal  injury  caused  by  accidental,  external,  and  visible 
means  within  the  meaning  of  an  accident  policy  insuring  against 
such  death.6  So,  an  instruction  in  an  action  upon  an  insurance 
policy  in  which  the  insured  was  killed  by  another,  that  if  the 
person  who  killed  him  was  impelled  in  so  doing  by  an  insane 
impulse  which  the  reason  that  was  left  to  him  did  not  enable  him 
to  resist  or  to  understand  the  nature  of  his  act,  the  injuries  were 
unintentional  within  the  meaning  of  a  policy,  will  be  construed 
as  meaning  that  he  was  incapable  of  weighing  the  moral  charac- 
ter of  the  act,  and  of  determining  whether  it  was  right  or  wrong, 

!  Travelers'  Ins.  Co.  v.  Melick,  65  Fed.  Eep.  178,  27  L.  E.  A.  629. 

2  Bachineyer  v.  Mutual  Eeserve  Fund  L.  Asso.  87  Wis.  328. 

3  Bachmeyer  v.  Mutual  Eeserve  Fund  L.  Asso.  87  Wis.  328,  82  Wis.  255. 

4  Blackstone  v.  Standard  L.  &  A.  Ins.  Co.  74  Mich.  592,  3  L.  E.  A.  486; 
Crandal  v.  Accident  Ins.  Co.  27  Fed.  Eep.  40. 

6  Blackstone  v.  Standard  L.  &  A.  Ins.  Co.  74  Mick.  592,  3  L.  E.  A.  486; 
Crandal  v.  Accident  Ins.  Co.  27  Fed.  Bep.  40. 

6  Winspear  v.  Accident  Ins.  Co.  L.  E.  6  Q.  B.  Div.  42. 


414  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

and  therefore  causing  no  material  injury  to  the  defendant  where 
the  court  had  carefully  instructed  as  to  the  law  of  insanity.1 

§  9.  Insanity  as  affecting  mutual  insurance. 

Insanity  is  sickness  or  disability  within  the  meaning  of  a  by-law 
of  a  mutual  benefit  society  providing  for  the  payment  of  weekly 
benefits  to  members  who  through  sickness  or  other  disability  are 
unable  to  follow  their  usual  business.2  And  a  member  of  a 
benevolent  society  who  is  removed  from  the  jurisdiction  thereof 
to  an  insane  asylum  becomes  an  absent  brother  although  his  legal 
status  as  a  resident  of  his  former  place  of  abode  remains  unaf- 
fected, within  the  meaning  of  the  by-laws  requiring  an  absent 
member  claiming  benefits  to  send  to  a  designated  officer  a  true 
statement  of  his  case  attested  in  a  specified  manner.3  So,  one 
who  was  mentally  competent  when  he  became  a  member  of  a 
benefit  society  may  be  expelled  for  violation  of  its  rules  after 
he  becomes  insane.*  And  such  a  society  may  proceed  against  a 
person  under  its  constitution  and  by-laws  by  preferring  charges 
against  him,  and  convict  him  for  neglect  to  appear,  and  punish 
him  by  expulsion  and  loss  of  all  rights  in  the  society,  where  he 
has  not  been  adjudged  insane  though  he  is  apparently  and  actu- 
ally of  unsound  mind.  b 

A  judgment  of  expulsion  of  a  member  of  a  society  is  invalid, 
however,  where  the  member  was  insane  at  the  time  and  under 
guardianship,  and  his  guardian  was  not  made  a  party  to  the  pro- 
ceeding for  the  expulsion.6  And  a  waiver  by  a  member  of  a  soci- 
ety of  the  rules  of  procedure  adopted  by  it  in  an  action  involving 
the  validity  of  a  judgment  of  expulsion  of  a  member  cannot  be 
ascertained  if  the  member  was  insane  at  the  time  of  the  rendition 
of  the  judgment.7 

So,  a  by-law  of  a  mutual  life  insurance  company  making  a  cer- 
tificate void  if  the  member,  whether  sane  or  insane,  should  take 

1  Marceau  v.  Travelers'  Ins.  Co.  101  Cal.  338. 

2  McCullough  v.  Expressman's  Mut.  Ben.  Asso.  133  Pa.  142,  7  L.  E.  A. 
210;  Burton  v.  Eyden,  L.  B.  8  Q.  B.  295. 

3  Walsh  v.  Consumnes  Tribe,  No.  14,  I.  O.  B.  M.  108  Cal.  496. 

4  Noel  v.  Modern  Woodmen  of  America,  61  111.  App.  597. 

5  Peiffer  v.  Weishaupt,  13  Daly,  161. 

6  Hoeffner  v.  Grand  Lodge  G.  O.  of  H.  41  Mo.  App.  359. 
1  Hoeffner  v.  Grand  Lodge  G.  O.  of  H.  41  Mo.  App.  359. 


LEGAL    ADJUDICATIONS    IN    CIVIL   CASES.  415 

his  own  life,  is  valid  and  effectual  as  to  a  prior  certificate  reciting 
that  any  violation  of  the  requirements  or  laws  now  in  force  or 
hereafter  to  be  enacted  should  invalidate  the  certificate.1 

The  Missouri  statutory  provision  that  suicide  shall  be  no 
defense  in  an  action  upon  an  insurance  policy  unless  the  assured 
contemplated  suicide  when  he  applied  for  the  policy  applies  to 
insurance  upon  the  assessment  plan  as  well  as  to  insurance  upon 
the  level  premium  plan.2 

§  10.  Existence  of  insanity,  how  determined. 

The  question  whether  death  by  suicide  of  an  insured  person 
was  voluntary  or  involuntary  or  the  result  of  insanity  is  not  deter- 
minable, as  a  matter  of  law,  by  the  court  where  there  is  evidence 
of  insanity,  but  is  one  of  fact  for  the  jury.3  Suicide  is  one  of 
the  facts  which  goes  with  all  others  to  the  jury  for  their  consid- 
eration on  the  question  of  the  existence  of  insanity.4  So,  the 
weight  of  evidence  of  insanity  of  the  insured  is  a  question  for  the 
jury,  and  not  for  the  judge ; b  and  the  judge  cannot  properly 
take  the  case  from  the  jury  if  there  is  any  evidence  tending  to 
prove  that  the  assured  was  insane  when  he  did  the  act  which 
caused  his  death.6  And  an  instruction  that  the  facts,  to  show 
suicide,  must  be  irresistible,  and  that  many  doubts,  as  well  as  a 
strong  presumption  of  law,  would  have  to  be  overcome  to  show 
suicide,  is  erroneous  as  an  invasion  of  the  province  of  the  jury.7 

So,  the  finding  of  a  jury  on  the  question  of  the  mental  capacity 
of  the  assured  at  the  time  will  not  be  disturbed  on  appeal  where 
there  is  a  conflict  in  the  testimony.8     But  acts  and  circumstances 

1  Supreme  Commandery  K.  of  G.  E.  v.  Ainsworth,  71  Ala.  436,  46  Am. 
Eep.  332. 

2  Knights  Templar  &  Masons  L.  Indem.  Co.  v.  Berry,  4  TJ.  S.  App.  353, 
50  Fed.  Eep.  511. 

3  Meacham  v.  New  York  State  Mut.  Ben.  Asso.  120  N.  Y.  237;  Bach- 
meyer v.  Mutual  Eeserve  Fund  L.  Asso.  82  Wis.  255.  And  see  Blackstone 
v.  Standard  L.  &  A.  Ins.  Co.  74  Mich.  592,  L.  E.  A.  486. 

4  Weed  v.  Mutual  Ben.  L.  Ins.  Co.  3  Jones  &  S.  386. 

6  Charter  Oak  Ins.  Co.  v.  Eodel,  95  U.  S.  232,  24  L.  ed.  433;  Hathaway 
v.  National  L.  Ins.  Co.  48  Vt.  336. 

6  Charter  Oak  Ins.  Co.  v.  Eodel,  95  TJ.  S.  232,  24  L.  ed.  433;  Bachmeyer 
v.  Mutual  Eeserve  Fund  L.  Asso.  82  Wis.  255. 

1  Bachmeyer  v.  Mutual  Eeserve  Fund  L.  Asso.  82  Wis.  255. 

8  New  Home  Life  Asso.  v.  Hagler,  29  HI.  App.  437;  Meacham  v.  New 
York  State  Mut.  Ben.  Asso.  120  N.  Y.  237. 


41t>  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

which  are  as  consistent  with  sanity  as  with  insanity  will  not 
authorize  the  submission  of  the  question  to  the  jury.1  And 
where  the  insured  fell  injuring  the  base  of  his  brain,  and  after- 
wards became  insane  and  helpless  and  took  his  own  life,  the 
question  whether  the  injury  received  by  the  fall  was  the  cause  of 
the  killing  is  too  conjectural  to  be  submitted  to  the  jury  as  a 
direct  cause  of  self-destruction.8  The  admission  of  evidence  in 
an  action  upon  an  insurance  policy  in  which  liability  is  sought  to 
be  avoided  because  the  insured  was  killed  by  another,  which  kill- 
ing was  claimed  to  be  accidental  because  of  the  insanity  of  the 
murderer,  giving  an  inexorable  test  as  to  insanity  not  addressed 
to  the  mental  condition  of  the  murderer  but  to  principles  touch- 
ing a  certain  branch  of  insanity  generally,  however,  is  harmless 
error,  and  affords  no  ground  for  complaint,  as  it  is  for  the  court 
to  furnish  the  rule  by  which  the  murderer's  mental  condition  is 
to  be  measured.3 

§  11.  Proof  as  to  insanity. 

The  mere  fact  that  an  insured  person  destroyed  his  own  life  is 
not  sufficient  to  establish  his  insanity.4  And  evidence  in  an  action 
upon  an  insurance  policy  conditioned  to  be  invalid  if  the  insured 
should  die  by  his  own  hand,  that  he  retired  to  his  own  room  at 
bedtime  and  later  a  report  of  a  pistol  was  heard  and  he  was  found 
in  a  reclining  position  on  the  sofa  with  a  pistol  near  him  and  had 
been  shot  in  the  mouth,  is  not  sufficient  to  establish  the  fact  that 
he  died  voluntarily  by  his  own  hand.5  So,  the  fact  that  a  man  set 
fire  to  his  own  buildings  does  not  alone  establish  his  insanity 
though  it  is  admissible  in  connection  with  other  evidence.6  Nor 
is  mere  proof  that  the  insured  was  insane  at  times  sufficient  to 
invalidate  the  policy,7  though  evidence  of  insanity  is  competent 

1  Weed  v.  Mutual  Ben.  L.  Ins.  Co.  70  N.  T.  561. 

2  Streeter  v.  Western  Union  Mut.  L.  &  Ace.  Soc.  65  Mich.  199. 
s  Marceau  v.  Travelers'  Ins.  Co.  101  Cal.  338. 

4  Knickerbocker  L.  Ins.  Co.  v.  Peters,  42  Md.  411;  Coffey  v.  Home  L. 
Ins.  Co.  44  How.  Pr.  481;  Moore  v.  Connecticut  Mut.  L.  Ins.  Co.  1  Flipp. 
363;  Merritt  v.  Cotton  States  L.  Ins.  Co.  55  Ga.  103. 

5  Phillips  v.  Louisiana  Equitable  L.  Ins.  Co.  26  La.  Ann.  404,  21  Am. 
Bep.  549. 

6  Karow  v.  Continental  Insurance  Co.  57  Wis.  56,  16  Am.  Bep.  17. 
'  Knickerbocker  L.  Ins.  Co.  v.  Peters,  42  Md.  414. 


LEGAL    ADJUDICATIONS    IN    CIVIL    OASES.  417 

and  material,1  and  proper  and  necessary.'  And  the  fact  that  the 
insured  was  in  good  health  and  had  a  family  is  entitled  to  con- 
sideration in  connection  with  other  circumstances  in  determining 
whether  the  act  of  suicide  was  voluntary  or  involuntary.8  And 
the  sudden  disappearance,  of  and  failure  to  discover  any  trace  of 
a  man  who  if  living  would  not  go  unnoticed,  and  who  was  in  such 
a  physical  and  mental  condition  as  to  excite  the  anxiety  of  his 
friends,  tend  to  establish  his  death."  So,  a  letter  by  the  insured 
to  his  wife  immediately  before  committing  suicide,  stating  that  a 
voice  which  he  thought  to  be  his  mother's  told  him  to  die,  and 
saying  that  he  was  almost  a  corpse,  and  asking  that  the  revolver 
which  he  intended  to  use  should  be  preserved  as  a  keepsake,  fur- 
nishes sufficient  evidence  to  warrant  a  jury  in  finding  that  he 
acted  under  an  insane  impulse  caused  by  disease,  depriving  him 
of  capacity  to  govern  his  conduct.6  And  declarations  made  two 
or  three  weeks  before  death,  by  the  assured  to  his  physician,  that 
he  felt  that  he  must  take  his  life,  tend  to  show  insanity  and 
irresponsibility  at  the  time  of  committing  the  act.8 

So,  the  fact  that  a  man  fifty  years  of  age  had  sought  to  rid  him- 
self of  his  wife,  with  whom  he  had  lived  pleasantly  for  many  years, 
and  marry  a  young  girl  fifteen  years  of  age  to  whom  he  made 
improper  proposals,  and  that  he  committed  suicide  upon  learning 
that  she  had  been  sent  away,  is  sufficient  to  require  the  question 
of  his  sanity  to  be  submitted  to  the  jury,  as  well  as.  the  question 
whether  the  act  was  done  with  intent  to  terminate  his  life.7  And 
evidence  of  a  sudden  change  of  disposition  upon  the  part  of  one 
who  had  been  of  a  genial  and  pleasant  nature  and  apparently 
happy,  and  whose  family  relations  were  pleasant,  by  becoming 
listless  and  nervous  and  sleepless  and  abstracted,  seeming  to  be 
troubled,  and  failing  at  times  to  respond  to  salutations,  and  com- 
plaining of  pain  in  the  head,  and  behaving  in  an  erratic  manner, 
after  which  he  cuts  his  throat,  is  sufficient  to  require  the  submis- 

'  Schultz  v.  Ins.  Co.  40  Ohio  St.  217,  48  Am.  Eep.  676. 

2  New  Home  Life  Asso.  v.  Hagler,  29  HI.  App.  437. 

3  Meacham  v.  New  York  State  Mut.  Ben.  Asso.  120  N.  Y.  237. 

4  John  Hancock  Mut.  L.  Ins.  Co.  v.  Moore,  34  Mich.  41. 

6  Meacham  v.  New  York  State  Mut.  Ben.  Asso.  120  N.  Y.  237. 

6  Hathaway  v.  National  L.  Ins.  Co.  48  Vt.  336. 

7  Bachmeyer  v.  Mutual  Reserve  Fund  L.  Ins.  Co.  87  Wis.  328. 

27 


418  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

sion  of  the  question  of  insanity  to  the  jury.1  And  so  is  evidence 
tending  to  show  that  the  assured  labored  under  a  severe  and  dan- 
gerous disease  of  the  brain  and  spine  which  in  the  opinion  of  his 
physician  must  have  proved  fatal  in  a  short  time  and  would  prob- 
ably render  him  insane,  and  of  conduct  indicating  that  his  mind 
was  affected,  together  with  evidence  of  his  disappearance.2 

A  letter  written  by  the  insured  upon  committing  suicide,  how- 
ever, telling  his  brother  that  he  suffered  from  fear  of  becoming 
insane  and  had  concluded  to  end  his  sufferings,  together  with 
proof  of  a  disease  which  tended  to  produce  a  morbid  mental  state, 
and  that  he  was  a  spiritualist  and  had  appeared  to  be  somewhat 
excited  and  absent-minded  and  morose,  is  sufficient  to  establish 
that  his  suicide  was  a  deliberate  act  designed  to  take  life,  which 
would  invalidate  a  policy  containing  a  condition  against  death  by 
his  own  hand.3 

So,  a  mere  belief  in  spiritualism  on  the  part  of  the  insured 
will  not  warrant  a  legal  conclusion  that  his  death  was  by  suicide 
where  there  is  nothing  to  show  whether  it  was  deliberate  or 
accidental ; 4  and  evidence  that  the  insured  unaccountably  went 
out  of  his  bedroom  very  early  in  the  morning  and  fell  over  the 
banisters  the  day  before  his  death,  and  that  later  he  complained 
of  giddiness  and  pains  in  his  head  and  was  found  falling  out  of 
the  window,  his  wife  being  in  the  room  at  the  time,  supports  a 
plea  of  insanity  as  an  excuse  for  self-destruction,  to  some  extent.5 

XVII.  Guardianship. 

§  1.  Inquisitions  —  nature. 

A  proceeding  to  put  a  person  under  a  conservator  or  guardian 
is  in  the  nature  of  a  commission  on  a  writ  de  lunatico  inquirendo.* 
And  a  person  cannot  be  regarded  as  insane  so  as  to  authorize  the 
appointment  of  a  guardian  or  a  conservator  without  the  issue  of 

1  Blackstone  v.  Standard  L.  &  A.  Ins.  Co.  74  Mich.  592,  3L.E.A.  486. 
But  see  McChvre  y.  Mutual  L.  Ins.  Co.  55  K  Y.  651. 
s  John  Hancock  Mutual  L.  Ins.  Co.  34  Mich.  41. 

3  Fowler  y.  Mutual  L.  Ins.  Co.  4  Lans.  202. 

4  Continental  L.  Ins.  Co.  v.  Delpeuch,  82  Pa.  225. 

5  Stormont  y.  Waterloo  Life  k  Cas.  Assur.  Co.  1  Fost.  &  F.  22. 

6  Griswold  y.  Butler,  3  Conn.  227. 


LEGAL    ADJUDICATIONS    IN    CIVIL   CASES.  419 

such  a  writ  and  a  finding  of  a  jury  thereon,'  an  appointment  with- 
out an  inquisition  being  absolutely  void,2  and  impeachable  in  any 
court  in  a  collateral  proceeding  in  which  a  party  seeks  to  benefit 
thereby.3  Though  chancery  may  exercise  a  temporary  jurisdic- 
tion over  the  lunatic  before  inquisition  when  necessary  for  the 
protection  of  his  estate  or  his  maintenance.4 

§  2.    What  incapacity  warrants. 

The  rule  has  been  laid  down  that  to  authorize  the  appointment 
of  a  committee  or  guardian  the  mind  of  the  alleged  lunatic  must 
be  so  far  impaired  as  to  reduce  it  to  the  standard  of  idiocy,  and 
that  it  is  not  sufficient  that  he  is  incapable  of  managing  his  affairs 
or  governing  himself  in  consequence  of  mental  imbecility  and 
weakness.6  But  it  would  seem  to  be  well  settled  that  the  issuance 
of  a  commission  of  lunacy  is  governed  solely  by  a  consideration 
of  what  is  necessary  for  the  protection  of  the  person  and  property 
and  the  well-being  and  happiness  of  the  alleged  lunatic;6  and 
that  no  regard  is  had  for  the  possible  results  of  a  commission  as 
to  the  validity  of  antecedent  acts,  or  for  motives  actuating  the 
proceeding;7  and  that  utter  and  unmitigated  madness  is  not  the 
only  kind  of  incapacity  which  will  subject  a  person  to  a  commis- 
sion of  lunacy.8  Want  of  discretion  from  whatever  cause  is  a 
sufficient  reason  for  the  appointment  of  a  guardian  where  it  is 
likely  to  bring  the  party  to  want  and  render  him  a  public  charge.9 
A  person  may  be  wholly  incompetent  to  manage  himself  and  his 

1  Eslava  v.  Lepretre,  21  Ala.  504,  56  Am.  Dec.  266;  Coon  v.  Cook,  6  Ind. 
268. 

2  Moody  v.  Bibb,  50  Ala.  248;  Eslava  v.  Lepretre,  21  Ala.  501,  56  Am. 
Dec.  266;  Ee  Payn,  8  How.  Pr.  220. 

8  Eslava  v.  Lepretre,  21  Ala.  504,  56  Am.  Dec.  266. 

4  Vane  v.  Vane,  L.  E.  2  Ch.  Div.  124;  Ee  Harris  (Del.)  28  Atl.  329; 
Nailor  v.  Nailor,  4  Dana,  339;  Ee  Dey,  9  N.  J.  Eq.  181;  Ee  Wendell,  1 
Johns.  Ch.  600;  Ee  Kenton,  5  Binn.  613. 

5Ee  Morgan,  7  Paige,  236;  Ee  Shaul,  40  How.  Pr.  205.  And  see  Ex 
parte  Barnsley,  3  Atk.  168;  Ee  Donegal,  2  Ves.  Sr.  407. 

6Ee  J.  B.,  1  Myl.  &  C.  538;  Ee  Hoblyn,  29  L.  T.  305;  Com.,  Enchenberg, 
v.  Schneider,  59  Pa.  328. 

7  Be  J.  B.,  lMyl.  &  C.  538. 

8  Com.,  Euchenberg,  v.  Schneider,  59  Pa.  328. 

9Angell  v.  Probate  Court,  11  E.  I.  187;  McCammon  v.  Cunningham, 
108  Ind.  545;  Nailor  v.  Nailor,  4  Dana,  339. 


±<2()  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

affairs  so  as  to  justify  the  appointment  of  a  committee  or  guardian 
and  yet  be  neither  an  idiot  nor  an  imbecile,1  and  though  he  be  not 
a  technical  idiot  or  lunatic.2     Thus,  the  jurisdiction  under  the 
Indiana  statute  is  not  confined  to  cases  of  insanity,  idiocy,  or  lun- 
acy strictly  so  called,  but  is  applicable  to  every  case  of  mental 
unsoundness  or  imbecility  which  has  reached  such  a  degree  as  to 
render  its  subject  incapable  of  conducting  the  ordinary  affairs  of 
life  and  leave  him  in  a  condition  to  become  a  victim  of  his  own 
folly  or  the  fraud  of  others.3     And  the  term  non  compos  mentis 
used  in  the  Maryland  act  giving  power  to  courts  to  superintend 
and  direct  the  affairs  of  such  persons,  embraces  not  only  lunatics 
and  idiots,  but  all  persons  of  unsound  mind/    Under  the  Michigan 
statute  the  infirmity  which  justifies  the  appointment  of  a  guardian 
must  be  equivalent  to  insanity  and  such  as  to  render  the  person 
incompetent  to  have  charge  of  any  affairs  or  do  any  business 
And  a  petition  alleging  that  the  party  is  feeble  in  body  and  mind 
so  as  to  be  unable  to  manage  her  business  affairs  with  a  proper 
decree  of  judgment  and  skill,  her  mind  being  so  weak  that  she 
could  be  influenced  by  others  in  any  direction  even  against  her 
own  interests  and  that  of  her  family,  and  could  be  induced  to 
part  with  her  property  without  just  compensation,  is  not  sufficient 
to  rive  the  court  jurisdiction/     But  a  finding  that  one  is  mentally 
incapable  is  equivalent  to  a  finding  of  mental  incompetency.      bo, 
an  inquisition  under  the  Tennessee   statute  contemplates  three 
kinds  of  incapacity -idiocy,  lunacy,  and  unsoundness  of  mind, 
short  of  those  involving  an  inability  to  govern  oneself  and  prop- 
erty *     And  an  instruction  in  a  proceeding  for  the  appointment 
of  a  cniardian  which  distinguishes  unsoundness   of  mind  from 
idiocy  on  the  one  hand  and  lunacy  on  the  other  is  proper  under 
a  statute  designating  three  classes  for  whom  guardians  may  be 
appointed.'     The  appointment  of  a  committee  to  care  for  the  per- 
■  Jackson  v.  Jackson,  37  Hun,  306;  Bidge^ay  v  Dar^n,  8  Yes.  Jr.  65. 
*  Shaw  v.  Dixon,  6  Bush,  644;  Ee  Conover,  28  ^.  J.  Eq.  330. 
s  McCammon  v.  Cunningham,  108  Inch  545. 
4  Greenwade  v.  Greenwade,  43  Md.  313. 
»Be  Storick,  64  Mich.  685. 
« Be  Storick,  64  Mich.  685. 
'•  Be  Leonard,  95  Mich.  295. 

8  Fentress  v.  Fentress,  7  Heisk.  428. 

9  Smith  v.  Hiekehbottom,  57  Iowa,  733. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  4^1 

son  of  a  party,  however,  is  not  warranted  where  he  is  not  of  un- 
sound mind  or  incapable  of  taking  care  of  himself.'  And  the  ap- 
pointment of  a  committee  in  a  proceeding  de  lunatico  inquirendo 
cannot  be  made  unless  it  is  clearly  established  that  the  party  is 
either  an  idiot,  a  lunatic,  or  a  person  of  unsound  mind.2  A  re- 
turn that  his  mind  is  so  far  weakened  and  impaired  as  to  render 
him  mentally  incapable  of  governing  himself  is  not  sufficient.3 
And  mere  incompetency  to  manage  his  affairs  upon  the  part  of  a 
party  will  not  alone  support  a  commission.4  Nor  will  a  return 
that  he  is  so  much  impaired  in  memory  as  to  render  him  incom- 
petent to  manage  his  affairs,  and  that  he  is  consequently  of  un- 
sound mind,  justify  an  inquisition  where  it  appears  that  he  is  not 
a  lunatic.6  Though  a  verdict  of  unsoundness  is  equivalent  to  one 
of  idiocy  or  lunacy.6  And  a  finding  that  a  person  whose  sanity 
was  in  question  was  of  unsound  mind,  not  stating  how  or  when 
it  became  unsound,  and  not  finding  him  to  be  an  idiot,  is  not 
sufficient  to  support  an  inquisition  so  as  to  render  it  admissible  in 
evidence  as  prima  facie  proof  of  his  idiocy.7 

§  3.  Age;  disease;  weakness. 

An  aged  person  is  not  of  unsound  mind,  so  as  to  require  a  guard- 
ian simply  because  he  has  not  sufficient  strength  of  mind  and 
ability  to  transact  his  business  affairs  with  ordinary  care  and  pru- 
dence if  he  is  capable  of  transacting  all  ordinary  business  involved 
in  taking  care  of  his  property  and  understands  the  nature  and 
effect  of  what  he  does  and  can  exercise  his  will  concerning  it  with 
discretion,  notwithstanding  the  influence  of  others,8  though  from 
the  defects  of  age  he  requires  something  more  of  providence  to 
be  thrown  around  him  for  his  protection  and  that  of  his  property 

1  Ee  Beaumont,  1  Whart.  52. 

2  Be  Shaul,  40  How.  Pr.  204;  Be  Mason,  3  Edw.  Ch.  380;  Be  Perrine,  41 
N.  J.  Eq.  409. 

3  Be  Mason,  3  Edw.  Ch.  380. 

4  Sherwood  v.  Sanderson,  19  Ves.  Jr.  280.     But  see  Be  Burr,  17  Barb.  13. 

5  Be  Holmes,  4  Buss.  182;  Be  Morgan,  7  Paige,  236. 

6  Sherwood  v.  Sanderson,  19  Ves.  Jr.  280. 
1  Christmas  t.  Mitchell,  3  Ired.  Eq.  535. 

8Emerick  v.  Emerick,  83  Iowa,  411,  13  L.  B.  A.  757;  Darling  v.  Bennet, 
8  Mass.  129;  Be  Shaul,  40  How.  Pr.  204;  Be  Brown,  45  Mich.  326;  Be 
Holmes,  4  Buss.  182;  Ex  parte  Cranmer,  12  Ves.  Jr.  445. 


422 


MEDICAL    JURISPRUDENCE    OF    INSANITY. 


than  his  own  mind  furnishes.1  A  commission  of  lunacy  is  not 
confined  to  direct  insanity,  however,  but  applies  to  cases  of  im- 
becility of  mind  from  any  cause,  as  age,2  disease,  epilepsy,  or 
habitual  drunkenness.3  And  a  person  afflicted  with  senile  de- 
mentia or  imbecility  may  be  declared  a  lunatic.4  And  a  commission 
may  issue  against  a  person  afflicted  with  epilepsy  who  is  not  com- 
petent to  manage  himself  or  his  property,  though  there  is  no 
proof  of  actual  insanity.5  But  the  imbecility  of  age  must  amount 
to  unsoundness  of  mind.6  And  in  such  case  the  proper  return  is 
that  the  party  is  of  unsound  mind  so  as  to  be  unable  to  govern 
himself  and  his  affairs.7  The  mind  of  an  aged  person  must  have 
been  so  impaired,  however,  that  he  was  not  only  incapable  of 
managing  his  property,  but  also  incapable  of  governing  himself.8 
And  partial  failure  of  memory  and  decay  and  feebleness  of  the 
intellectual  faculties  are  not  evidence  of  that  unsoundness  of  mind 
which  will  justify  a  finding  of  lunacy;  to  warrant  this  it  must  be 
a  total  deprivation  or  suspension  of  the  ordinary  powers  of  the 
mind.9 

So,  mere  weakness  of  intellect  is  not  of  itself  sufficient  to  estab- 
lish insanity  justifying  the  issue  of  a  commission  of  lunacy.10 
!STor  is  weakness  of  mind  combined  with  lack  of  business  capacity 
or  experience.1'  And  mere  weakness  of  mind  does  not  justify  a 
decree  of  guardianship  where  in  view  of  all  the  evidence  the 
decree  is  not  necessary  either  for  the  protection  of  the  person  or 
property.12     But  a  guardian  may  be  appointed  for  one  who  is  of 

1  Re  Langley,  cited  in  Shelford,  Lunacy,  90. 

2  Ridge  way  v.  Darwin,  8  Ves.  Jr.  65;  Re  Cranmer,  12  Ves.  Jr.  446;  Re 
Perrine,  4]  N.  J.  Eq.  411;  Re  Collins,  18  N.  J.  Eq.  253;  Re  Barker,  2 
Johns.  Ch.  232. 

3  Ridgeway  v.  Darwin,  8  Ves.  Jr.  65. 

4  Re  Kelly,  6  Prac.  Rep.  (Can.)  220. 
«  Re  Monahan,  9  Ir.  Eq.  253. 

«Re  Collins,  18  N.  J.  Eq.  253. 

1  Ex  parte  Cranmer,  12  Ves.  Jr.  445. 

8  Re  Lindsley,  44  N.  J.  Eq.  564. 

9  Re  Van  Auken,  10  N.  J.  Eq.  192. 

10  Com.,  Haskell,  v.  Haskell,  2  Brewst.  491;  Green  wade  v.  Green  wade,  43 
Md.  313;   Re  Donegal,  2  Ves.  Sr.  407,  Ves.  Sr.  Supp.  369. 

11  Re  Mason,  60  Hun,  46. 

12  Francke  v.  His  Wife,  29  La.  Ann.  302;   Watson's  Interdiction,  31  La. 
Ann.  757. 


LEGAL   ADJUDICATIONS    IN   CIVIL    CASES.  423 

such  mental  weakness  that  his  judgment  cannot  be  trusted  in  the 
management  of  business  whether  it  arises  from  unsoundness  of 
mind,  idiocy,  or  lunacy.1  And  a  commission  may  be  granted 
against  a  person  who  has  arrived  at  maturity  where  it  appears 
that  she  has  been  of  very  weak  intellect  from  birth,  and  there  is 
no  ground  to  expect  that  she  will  ever  be  capable  of  governing 
herself  or  managing  her  affairs;2  and  against  a  person  of  weak 
understanding  who  when  in  liquor  or  laboring  under  excitement 
is  readily  aroused  into  mental  unsoundness,  though  at  the  time  of 
the  application  he  was  free  from  such  affliction  and  of  sound 
mind.3  And  an  instruction  in  an  action  for  the  discharge  of  a 
trustee,  and  to  have  the  trust  property  turned  over  to  the  cestui 
que  trust,  in  which  insanity  is  alleged  as  a  defense,  that  mere 
weakness  of  mind  where  there  is  no  fraud  or  imposition  will  not 
relieve,  is  inapplicable  to  the  case  and  fragmentary  in  its  charac- 
ter/ 

§4.  Tests. 

The  question  at  issue  in  a  lunacy  proceeding  is  whether  the 
defendant  was  so  far  deprived  of  his  reason  and  understanding 
as  to  be  unable  to  govern  himself  and  manage  his  affairs.5  And 
the  question  on  an  inquisition  against  one  afflicted  with  a  delusion 
which  is  shown  to  have  a  dangerous  tendency  is  whether  there  is 
such  imminent  danger  as  to  require  his  control  for  his  own  good 

1  Smith  v.  Hickenbottom,  57  Iowa,  733. 
*  Be  Flint,  Shelford  on  Lunacy,  91. 

3  Ee  J.  B.,  1  Myl.  &  0.  538. 

4  Obear  v.  Gray,  73  Ga.  455. 

5  Hamrick  v.  State,  Hamrick,  134  Ind.  324;  Fiscus  v.  Turner,  125  Ind. 
46;  McCammon  v.  Cunningham,  108  Ind.  545;  Snyder  v.  Snyder.  142  111. 
60;  Guthrie  v.  Guthrie,  84  Iowa,  372;  Shaw  v.  Dixon,  6  Bush,  644; 
Lackey  v.  Lackey,  8  B.  Mon.  107;  Be  Lindsley,  43  N.  J.  Eq.  9;  Be  James, 
35  N.  J.  Eq.  58;  Be  Hill,  31  N.  J.  Eq.  203;  Be  Collins,  18  N.  J.  Eq.  253; 
Be  Conover,  28  N.  J.  Eq.  330;  Jackson  v.  Jackson,  37  Hun,  306;  Ee 
Bogers,  9  Abb.  N.  C.  141;  Be  Burr,  17  Barb.  13;  Be  Mason,  1  Barb.  436; 
Be  Barker,  2  Johns.  Ch.  232;  Com.,  Haskell,  v.  Haskell,  2  Brewst.  491; 
Be  Cope,  19  Phila.  569,  7  Co.  Ct.  406;  Com.  v.  Meredith,  17  Phila.  90,  14 
W.  N.C.  188;  McEtroy's  Case,  6  Watts  &  S.  451;  Com.  v.  Beeves,  140  Pa. 
258;  Eobertson  v.  Lyon,  24  S.  C.  266;  Henderson  v.  McGregor,  30  Wis. 
78;  Ex  parte  Cranmer,  12  Ves.  Jr.  445;  Gibson  v.  Jeyes,  6  Ves.  Jr.  266. 


42i  MEDICAL    JUKISPKUDEXCE    OF    INSANITY. 

or  that  of  others.1  A  finding  that  the  party  is  mentally  incapable 
of  governing  himself  or  managing  his  affairs  is  sufficient  to  give 
the  court  jurisdiction  to  authorize  the  appointment  of  a  commit- 
tee of  his  estate.2  And  a  commission  may  issue  against  a  person 
incapable  of  managing  his  affairs  though  he  is  not  totally  incap- 
able of  taking  care  of  himself.3 

A  return  that  the  request  to  have  a  guardian  appointed  is  right 
and  reasonable,  however,  is  not  a  finding  that  the  party  was 
insane  and  incapable  of  taking  care  of  himself,  that  being  the 
subject-matter  of  the  inquiry."  And,  a  proper  instruction  to  the 
jury  is  that  a  finding  against  the  inquisition  is  that  the  person 
sought  to  be  put  under  guardianship  is  of  sound  mind  and  capa- 
ble of  managing  his  estate,  and  a  finding  in  its  favor  that  he  is 
of  unsound  mind  and  incapable  of  managing  his  estate.5 

Some  of  the  cases  have  qualified  the  rule  by  requiring  capacity 
for  the  carrying  on  of  ordinary  affairs  with  reasonable  prudence,6 
and  held  that  when  unsoundness  of  mind  is  proved  on  a  commis- 
sion of  lunacy  the  question  is  as  to  its  degree,  and  that  the  court 
should  look  at  the  value  and  importance  of  the  property  to  be 
controlled  and  consider  the  question  whether  or  not  he  had  ever 
previously  had  property  to  control,  as  his  capacity  would  be 
greater  in  case  he  were  used  to  managing  property.7  "Within 
this  rule  one  who  has  sufficient  sense  and  judgment  to  transact 
the  business  affairs  pertaining  to  the  situation  in  life  in  which  he 
is  placed  is  not  an  incompetent  for  whom  a  guardian  should  be 
appointed.8  And  a  woman  who  is  able  to  take  care  of  herself  in 
the  home  provided  for  her,  and  who  knows  how  to  care  for  her 
house  and  table  and  clothing  and  transact  the  ordinary  affairs  of 

1  Com.  v.  Meredith,  14  W.  N.  C.  188,  17  Phila.  90;  Owings'  Case,  1 
Bland,  Ch.  290;  Ee  Colvin's  Estate,  3  Md.  Ch.  278;  Ee  Chattin,  16  N.  J. 
Eq.  496. 

8  Ee  Mason,  1  Barb.  436;   Ee  Barker,  2  Johns.  Ch.  232. 

3  Com.,  Euchenberg,  v.  Schneider,  59  Pa.  328. 

4  Smith  v.  Burnham,  1  Aik.  (Yt.)  81.  See  also  Ee  Beaumont,  1  Whart. 
52,  29  Am.  Dec.  33. 

5  Cochran  v.  Amsden,  104  Lid.  282. 

6  Harnrick  v.  State,  Hamrick,  134  Ind.  324;  Fiscus  v.  Turner,  125  Lad. 
46. 

'  Ee  Collins,  18  N.  J.  Eq.  253. 
8  Ee  Storick,  64  Mich.  685. 


LEGAL   ADJUDICATIONS    IN   CIVIL   CASES.  425 

the  household  which  she  is  accustomed  to  deal  with,  is  not  an 
incompetent ; '  though  an  inquisition  would  lie  against  a  deaf 
mute  sixty-five  years  of  age  who  had  been  so  since  infancy  and 
could  neither  read  nor  write  nor  express  her  understandings  nor 
transact  business,  and  had  always  been  cared  for  by  her  relatives, 
though  she  could  sweep,  cook,  and  sew,  and  do  common  every- 
day work,  and  it  was  possible  to  communicate  to  her  a  desire  that 
she  should  do  such  work.2  On  the  other  hand,  however,  it  is 
held  that  the  mere  fact  that  a  person  cannot  manage  his  estate 
judiciously  is  not  sufficient  to  warrant  the  appointment  of  a  guar- 
dian or  committee.3  Nor  is  the  fact  that  his  management  is  not 
such  as  a  person  of  intellect,  vigor,  and  skill  might  approve.4 
Mental  health,  and  fitness  to  manage  the  common  and  ordinary 
affairs  of  life,  and  not  competency  proportioned  to  the  extent  of 
the  estate  of  the  party,  is  all  that  is  necessary  to  warrant  the  dis- 
charge of  a  committee  of  the  property  of  an  alleged  lunatic.5 

So,  an  inquisition  should  not  issue  unless  the  evidence  shows 
more  than  eccentricity  or  partial  unsoundness,6  or  than  supersti- 
tion, folly,  or  unfounded  jealousy.7  Nor  will  it  issue  against  a 
man  under  the  care  of  his  wife,  where  it  does  not  appear  to  be 
required  for  his  comfort  and  protection  and  might  be  attended 
with  injurious  effects.8  And  the  fact  that  a  man  is  not  able  to 
provide  a  comfortable  and  suitable  maintenance  for  his  family 
will  not  authorize  the  appointment  of  a  guardian,  though  he 
makes  foolish  bargains  and  squanders  his  earnings.9  And  the 
mere  fact  that  a  party  is  a  lunatic  will  not  warrant  a  commission 
where  he  enjoys  lucid  intervals  and  during  such  intervals  he  is 
competent  to  govern  himself  and  his  affairs.10  An  inquisition  will 
lie  against  one  not  capable  of  governing  himself  or  his  estate, 

1  Ee  Storick,  64  Mich.  685. 

2  Ee  Perrine,  41  N.  J.  Eq.  409. 

3  Com.  v.  Eeeves,  140  Pa.  258;  Com.  v.  Meredith,  14  W.  N.  C.  188,  17 
Phila.  90;  Darling  v.  Bennet,  8  Mass.  129. 

4  Com.,  Euchenberg,  v.  Schneider,  59  Pa.  328. 

5  Ee  Mason,  60  Hun,  46. 

6  Ee  Cope,  19  Phila.  569,  7  Co.  Ct.  406. 

1  Com.,  Eubright,  v.  Western  Pa.  Hospital,  3  Pittsb.  299. 

8  Ee  Clement,  Shelford,  Lunacy,  92. 

9  Partello  v.  Holton,  79  Mich.  372. 

10  Ex  parte  Atkinson,  Jac.  Ch.  333. 


426  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

however,  notwithstanding  the  fact  that  he  has  lucid  intervals ; ' 
and  whether  the  incapacity  arises  from  unsoundness  of  mind, 
idiocy,  or  lunacy.2  And  a  guardian  'may  be  appointed  where 
there  is  reasonable  ground  to  apprehend  that  the  lunatic  will  do 
violence  to  himself  or  others  or  squander  his  property  5  though  no 
act  of  madness  has  been  committed.3 

So,  incapacity  to  manage  the  ordinary  business  and  affairs  of 
life  will  uphold  the  creation  and  continuance  of  a  trust  under 
Ga.  Code,  §  2306,  providing  therefor  where  the  person  is  non 
compos  mentis*  And  the  fact  that  a  female  defendant  in  an 
action  was  unmarried  and  above  sixty  years  of  age,  and  had  been 
deaf  and  dumb  from  her  infancy,  constitutes  such  imbecility  of 
mind  as  to  render  her  incapable  of  defending  the  action,  and 
authorizes  the  appointment  of  a  guardian  to  defend  for  her.5 

§  5.  The  question,  by  whom  determined. 
The  existence  of  such  a  state  of  unsoundness  of  mind  as  will 
give  the  courts  jurisdiction  to  superintend  and  direct  the  affairs 
of  a  person  is  a  question  of  fact  depending  upon  the  proof.6  And 
the  question  whether  a  delusion  upon  a  particular  subject  is  suffi- 
cient to  authorize  a  finding  of  lunacy  upon  an  inquisition  is  one 
for  the  determination  of  a  jury.7  It  would  appear  to  be  proper, 
however,  to  provide  for  the  submission  of  the  question  either  to 
the  court  or  to  the  jury,  though  provisions  for  its  submission  to 
the  jury  are  probably  more  frequent.  The  appointment  of  a 
guardian  for  an  insane  person  by  virtue  of  an  adjudication  of 
lunacy  does  not  contravene  constitutional  or  statutory  provisions 
that  in  all  cases  involving  life  or  liberty  the  accused  shall  have  a 
speedy  trial  before  an  impartial  jury,  such  provisions  applying 
only  to  accusations  of  offenses  against  criminal  law.8  And  although 
an  issue  has  been  directed  to  ascertain  the  sanity  or  insanity  of  a 

1  Ke  Hill,  31  N.  J.  Eq.  203;   Guthrie  v.  Guthrie,  84  Iowa,  372. 
'2  Smith  v.  Hickenbottom,  57  Iowa,  733. 

s  Com.  v.  Meredith,  19  Phila.  90, 14  W.  N.  C.  188.     And  see  Ke  Cope,  19 
Phila.  569,  7  Co.  Ct.  406. 
4  Gray  v.  Obear,  59  Ga.  675. 
6  Markle  v.  Markle,  4  Johns.  Ch.  168. 
6  Greenwade  v.  Greenwade,  43  Md.  313. 
1  Ee  M'Elroy,  6  Watts  &  S.  451. 
*  Black  Hawk  County  v.  Springer,  58  Iowa,  417. 


LEGAL   ADJUDICATIONS    IN    CIVIL   CASES.  427 

person  and  a  verdict  of  insanity  is  returned,  and  the  judge  certi- 
s  that  he  cannot  say  that  it  was  improper,  yet  an  appellate  court 
should  disregard  the  proceeding  if  the  evidence  at  the  hearing 
^S  such  that  the  chancellor  should  have  made  a  different  dej 
sion  m  the  first  instance.' 

§  6.  Proof  necessary  to  establish. 

for^  ZdT  °nght,DOt  [°  ^  made  aSSi*ninS  a  ^Uardian  «*  to»" 
lor  a  party  alleged  to  be  of  unsound  mind  where  there  is  a  suffi- 
cient and  bona  fide  dispute  as  to  such  unsoundness.2  And  where 
the  question  of  the  well-being  and  happiness  of  the  alleged  lunatic 
and  the  condition  and  security  of  his  property  is  left  at  all  in 
doubt ;  upon  an  inquisition  the  court  will  direct  a  further  inquiry 
mto  the  circumstances  with  a  view  to  sparing  the  alleged  lunatic 
vexation  and  expense,  before  ordering  a  commission  to  issue  3 

Mere  eccentricity  or  peculiarity  is  not  evidence  of  insanity  in  a 
proceeding  for  the  issue  of  a  commission  where  that  is  the  normal 
characteristic  of  the  party/     Nor  is  evidence  that  the  sense  and 
physical  powers  of  the  person  against  whom  a  commission  is  issued 
are  much  impaired,  and  that  his  mental  powers  are  somewhat 
weakened,  sufficient  to  show  unsoundness  rendering  him  incom 
petent  to  manage  his  affairs.6    Nor  is  the  fact  that  he  makes  an 
improvident  bargain  or  many  such  bargains,  or  that  he  is  unthrifty 
or  unsuccessful  in  business,  though  in  connection  with  other  facts 
it  may  tend  to  show  unsoundness.6     Kor  is  proof  that  a  man  is 
old  and  under  the  influence  of  his  children  and  was  induced  to 
expend  his  property  for  their  indulgence  when  he  had  usually 
been  careful  of  it,  sufficient'     And  the  fact  that  a  person  is  in 
her  hundredth  year,  and  that  her  sight  and  hearing  are  impaired 
raises  no  presumption  against  her  soundness  of  mind.8     So,  the 
1  Atwood  v.  Smith,  11  Ala.  894. 

a  llVuTJ,tr\15  Pr°b-  D1V-  25'  AfKrmed'  L-  R-  15  p™b.  Div.  50 
19  Ma.  569  '  ^  ^  38;  Re  °°pe'  7  Pa'  Co'  Ct'  ** 

*  R^'^^M'J-  rHa'ke11'  2  BreWSt  491'  Ee  C°Pe>  19  »  569. 
Re  Collins,  18  N.  J.  Eq.  253. 

6  Re  Carmichael,  36  Ala.  514. 

7  Darling  v.  Bennet,  8  Mass.  129. 

8  Ee  Collins,  18  N.  J.  Eq.  253;  Be  Vanauken,  10  N.  J.  En    186      Wl 
see  English  v.  Porter,  109  HI.  285.  * 


428  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

oath  of  a  party  applying  for  the  appointment  of  a  guardian  ad 
litem  for  a  person  alleged  to  be  of  unsound  mind,  but  not  so  found 
by  inquisition,  is  not  sufficient  evidence  of  the  lunacy;  facts  should 
be  shown  from  which  the  court  may  judge  for  itself.1  And  other 
evidence  should  be  taken  in  determining  whether  a  guardian  shall 
be  appointed  for  a  person  alleged  to  be  non  compos  mentis  than 
that  arising  from  an  examination  of  the  person  himself.2  And 
but  little  weight  can  be  given  to  opinions  of  non-expert  witnesses 
as  to  the  mental  condition  of  the  defendant  in  an  action  for  his 
interdiction.3  The  jury  should  be  left  at  liberty  to  apply  the  same 
general  rules  to  such  testimony  as  are  applicable  to  the  testimony 
of  other  witnesses  when  estimating  its  value.4  And  a  person  will 
not  be  interdicted  on  the  ground  of  idiocy  and  imbecility  on  the 
evidence  of  two  medical  witnesses,  neither  of  whom  had  ever  con- 
versed with  him  until  the  day  before  the  filing  of  their  report,  and 
who  had  not  had  an  opportunity  to  test  his  mental  condition.5 
But  while  the  courts  will  not  be  controlled  by  the  opinions  of 
medical  experts  they  will  give  them  respectful  consideration, 
giving  legitimate  weight  to  every  act  bearing  on  the  issue 
but  forming  their  own  conclusions.8  So,  a  delusion  which  is 
slight  and  harmless  will  not  authorize  a  finding  of  lunacy  on  an 
inquisition  where  there  is  no  prospect  or  probability  of  its  work- 
ing harm  either  to  the  party  or  his  friends  in  person  or  estate.7 
But  where  the  relator  in  an  inquisition  charges  delusion,  the 
alleged  lunatic  has  the  right  to  show  that  the  accusations  are 
founded  on  fact.8  And  evidence  of  insane  delusions,  together 
with  the  opinions  of  several  competent  and  expert  medical  wit- 
nesses having  excellent  opportunities  for  judging,  that  the  party 
was  so  insane  as  to  be  unfit  to  manage  his  affairs,  is  sufficient  to 
justify  setting  aside  a  return  to  a  commission  that  he  was  not 
incapacitated  for  the  management  of  his  estate.9     So,  insanity  in 

1  Mclntyre  v.  Kingsley,  1  Oh.  Chambers,  281. 

2  Brigham  v.  Brigham,  12  Mass.  504. 

3  Eloi  v.  Eloi,  36  La.  Ann.  563. 

4  Ouneo  v.  Bessoni,  63  Ind.  524. 

6  Watson's  Interdiction,  31  La.  Ann.  757. 
6  Francke  v.  His  Wife,  29  La.  Ann.  302. 
1  Be  M'Elroy,  6  Watts  &  S.  451. 

8  Com.,  Haskell,  v.  Haskell,  2  Brewst,  491. 

9  Be  Fitzgerald,  30  N.  J.  Eq.  59. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  429 

the  family  of  a  person  against  whom  an  inquisition  is  issued  is 
entitled  to  consideration.1  And  evidence  of  previous  insanity 
may  be  considered  as  tending  to  prove  permanent  unsoundness  of 
mind  which  might  have  continued  up  to  the  time  of  the  trial.2 
So,  evidence  in  a  proceeding  for  the  appointment  of  a  guardian 
that  the  alleged -incompetent  was  much  cast  down  and  thought 
his  sons  had  misused  him  and  were  wasting  his  property,  and  that 
he  desired  somebody  to  take  care  of  it,  may  be  considered  as 
tending  to  show  his  mental  condition,  and  that  he  was  subject  to 
delusions.3  And  evidence  of  impaired  health  by  excessive  drink- 
ing, and  that  the  party  underwent  a  sudden  change  of  character 
and  feeling  with  reference  both  to  domestic  and  business  matters, 
and  wrote  incoherent  letters,  and  behaved  in  an  unusual  manner, 
and  refused  to  take  medicine,  intimating  that  his  family  were  try- 
ing to  poison  him,  will  sustain  a  finding  that  he  was  insane  and 
mentally  incompetent  to  care  for  himself  and  his  estate.4  So, 
evidence  of  forgetfulness  on  the  part  of  a  person  against  whom 
an  inquisition  is  issued,  of  the  fact  that  he  had  a  considerable  sum 
of  money  which  he  had  himself  deposited  in  a  savings  bank, 
and  the  recent  execution  by  him  of  important  papers,  and  of 
inability  on  his  part  to  comprehend  the  nature  of  the  proceed- 
ing in  lunacy  against  him,  warrants  setting  aside  a  return  that  he 
was  capable  of  governing  himself  and  his  property,  as  against 
evidence.6  The  alleged  lunatic  may  be  brought  into  court  after 
the  return  of  the  inquisition  and  an  inquiry  made  by  inspection.8 
And  evidence  as  to  the  motive  of  the  person  prosecuting  the 
commission  is  important  to  be  considered.7 

§  7.  Inquisition  as  evidence  —  as  to  subsequent  acts. 
The  English  rule  is  that  an  inquisition  is  presumptive  evidence 
of  lunacy  only.8     But  a  commission  finding  a  testator  to  have  been 

1  Com.,  Haskell,  v.  Haskell,  2  Brewst.  491. 

2  Obear  v.  Gray,  73  Ga.  455. 

3  Smith  v.  Hickenbottom,  57  Iowa,  733. 

4  Barbo  v.  Eider,  67  Wis.  598. 

6  Be  Lawrence,  28  N.  J.  Eq.  331. 

6  Be  Wendell,  1  Johns.  Ch.  600;  Be  Payn,  8  How.  Pr.  224. 

1  Francke  v.  His  Wife,  29  La.  Ann.  302. 

8Sergesonv.  Sealey,  2  Atk.  412;  Faulder  v.  Silk,  3  Oampb.  126;  Bodd  v. 
Lewis,  2  Lee,  Eccl.  Bep.  176;  Hall  v.  Warren,  9  Ves.  Jr.  603;  Baxter  v. 
Portsmouth,  5  Barn.  &  C.  170;  Yates  v.  Boen,  2  Strange,  1104.     See  also 


430  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

of  unsound  mind,  remaining  unsuperseded,  raises  a  presumption 
in  a  proceeding  to  contest  his  will  that  he  remained  a  lunatic  until 
his  death,  though  it  may  be  rebutted  by  positive  proof  of  entire 
recovery  or  a  lucid  interval  when  the  will  was  made.1  So,  a  num- 
ber of  the  American  courts  have  adopted  the  same  rule,  holding 
that  the  judgment  of  a  court  of  competent  jurisdiction  on  an 
inquisition  of  lunacy  finding  a  party  to  be  insane  is  prima  facie 
evidence  of  the  fact  adjudged,2  but  that  the  finding  of  an  inquest 
in  lunacy  proceeding  is  only  presumptive  proof  of  insanity,  mak- 
ing a  prima  facie  case  only.3  It  is  not  conclusive  evidence  of  in- 
capacity4 though  the  guardianship  continues  to  exist6  and  is  not 
necessarily  a  bar  to  habeas  corpus,"  but  its  effect  is  to  shift  the 
burden  of  proof  to  the  party  asserting  capacity.7     And  it  is  also 

Pottsniouth  v.  Portsmouth,  1  Hagg.  Eccl.  Rep.  355;  Johnson  v.  Kincade, 
2  Ired.  Eq.  470. 

1  Prinsep  v.  Dyce  Sombre,  10  Moore,  P.  C.  232;  Cartwright  v.  Cartwright, 
1  Philliin.  Eccl.  Eep.  90. 

8  Wall  v.  Hill,  1  B.  Mon.  290,  36  Am.  Dec.  578;  Clark  v.  Trad,  1  Met. 
(Ky.)  35;  Titlow  v.  Titlow,  54  Pa.  216,  93  Am.  Dec.  691;  Rogers  v.  Walker, 
6  Pa.  371,  47  Am.  Dec.  470;  Willis  v.  Willis,  12  Pa.  159;  Noel  v.  Karper, 
53  Pa.  97;  Hamilton  v.  Hamilton,  10  R.  I.  538;  Keys  v.  Xorris,  6  Rich.  Eq. 
388;  Thomasson  v.  Kircheval,  10  Humph.  322;  Stevens  v.  Stevens,  127 
Ind.  560;  Hughes  v.  Hughes,  2  Muni.  209. 

3  Armstrong  v.  Short,  1  Hawks,  11;  Messenger  v.  Bliss,  35  Ohio  St.  587; 
Lancaster  County  Nat.  Bank  v.  Moore,  78  Pa.  407,  21  Am.  Rep.  24;  Mc- 
Ginnis  v.  Com.,  McGinnis,  74  Pa.  215;  Miskey's  Appeal,  107  Pa.  611; 
Leckey  v.  Cunningham,  56  Pa.  373;  Koons  v.  Benscoter,  2  Kulp,  451; 
Gresh  v.  Tamany,  2  Kulp,  453;  Com.  v.  Spiuk,  27  W.  X.  C.  37;  ffill  v. 
Day,  34  X.  J.  Eq.  150;  Kern  v.  Kern,  51  N.  J.  Eq.  574.  And  see  Johnson 
v.  Kincade,  2  Ired.  Eq.  470. 

4Pittard  v.  Foster,  12  El.  App.  132;  Yauger  v.  Skinner,  14  X.  J.  Eq.. 
389;  Hunt  v.  Hunt,  13  X.  J.  Eq.  161;  Den,  Aber  v.  Clark,  10  X.  J.  L.  258, 
18  Am.  Dec.  417;  Whit  mack  v.  Stryker,  2  X.  J.  Eq.  8;  Hart  v.  Deamer,  6- 
Wend.  497;  Johnson  v.  Kincade,  2  Ired.  Eq.  470;  Parker  v.  Davis,  8  Jones, 
L.  460;  Willis  v.  Willis,  12  Pa.  159;  Com.  v.  Spink,  27  W.  X.  C.  37;  Dyre's 
Estate,  12  Phila.  156;  Keyes  v.  Xorris,  6  Rich.  Eq.  388;  Stannard  v.  Burns, 
63  Vt.  244;  Robinson  v.  Robinson,  39  Vt.  267.  And  see  Kellogg  v.  Cochran, 
87  Cal.  192,  12  L.  R.  A.  104. 

5  Robinson  v.  Robinson,  39  Yt.  267. 

6  Com.  Draper,  v.  Kirkbride,  3  Brewst.  393;  Xoel  v.  Karper,  53  Pa.  97; 
Titlow  v.  Titlow,  54  Pa.  216,  93  Am.  Dec.  691. 

:  Leckey  v.  Cunningham,  56  Pa.  373;  Willis  v.  Willis,  12  Pa.  159;  Glass 
v.  Hillary,  1  Pa.  Dist.  R.  621. 


LEGAL   ADJUDICATIONS   IN    CIVIL   CASES.  431 

evidence  of  lunacy.1  The  other  party  to  the  action,  however, 
may  traverse  the  truth  of  the  inquisition  and  give  evidence  to 
verify  his  replication,2  showing  that  at  the  time  of  the  act  he  had 
sufficient  capacity  to  perform  it.3  He  is  not  estopped  though  he 
be  the  party  who  promoted  the  lunacy  proceedings  and.  signed  the 
petition,  and  was  subsequently  appointed  the  committee  of  the 
lunatic.4  And  it  is  error  to  require  the  jury  in  an  action  by  an 
heir  for  lands  conveyed  by  his  ancestor  who  had  been  found  in- 
sane to  find  for  the  plaintiff  unless  they  believe  from  the  evidence 
that  the  ancestor  was  capable  of  transacting  his  own  business  with 
judgment  and  discretion.6  And  an  inquisition  finding  a  party 
to  a  marriage  to  be  an  idiot  or  a  lunatic  is  open  to  rebuttal  by  the 
other  party  in  an  action  for  the  annulment  of  the  marriage."  Nor 
is  the  force  of  an  adjudication  of  insanity  affected  by  the  marriage 
and  consequent  change  of  name  of  an  insane  woman.7  Under 
statutes,  however,  invalidating  contracts,  gifts,  etc.,  of  persons  of 
unsound  mind,  and  placing  the  management  of  the  affairs  of  such 
persons  in  the  hands  of  the  court,  an  inquisition  has  been  regarded 
as  a  proceeding  in  rem,  and  as  conclusive  evidence  of  insanity  as 
to  all  acts  done  after  the  inquisition.8  And  evidence  of  a  lucid 
interval,  or  of  recovery,  is  inadmissible  to  controvert  the  insanity 
of  a  person  placed  under  guardianship,  and  non  est  factum  may 
be  pleaded.9     And  the  appointment  of  a  guardian  by  a  court  of 

1  Eogers  v.  Walker,  6  Pa.  371,  47  Am.  Dec.  470;  Pittard  v.  Foster,  12  111. 
App.  132. 

8  Armstrong  v.  Short,  1  Hawks,  11;  Willis  v.  WiUis,  12  Pa.  159. 

3  Parker  v.  Davis,  8  Jones,  L.  460;  Den.  Aber,  v.  Clark,  10  N.  J.  L.  258, 
18  Am.  Dec.  417. 

4Titlow  v.  Titlow,  54  Pa.  216,  93  Am.  Dec.  691. 

&Wall  v.  Hill,  1  B.  Mod.  290. 

6  Johnson  v.  Kincade,  2  Ired.  Eq.  470. 

7  Redden  v.  Baker,  86  Ind.  191. 

8  Redden  v.  Baker,  86  Ind.  191;  Musselman  v.  Cravens,  47  Ind.  1 
Leonard  v.  Leonard,  14  Pick.  280;  Willwerth  v.  Leonard,  156  Mass.  277 
Thorpe  v.  Hanscom,  64  Minn.  201;  Kiehne  v.  Wessell,  53  Mo.  App.  667 
Southern  Tier  Masonic  Relief  Asso.  v.  Laudenbach,  5  N.  Y.  Supp.  901 ;  Re 
Patterson,  4  How.  Pr.  35;  Hughes  v.  Jones,  116  N.  Y.  67,  5  L.  R.  A.  632; 
Wadsworth  v.  Sharpsteen,  8  N.  Y.  388;  Wadsworth  v.  Sherman,  14  Barb. 
171;  L'  Amoreaux  v.  Crosby,  2  Paige,  422.  And  see  Klohs  v.  Klohs,  61  Pa. 
245;  Tozer  v.  Saturlee,  3  Grant,  Cas.  162;  White  v.  Palmer,  4  Mass.  147. 

9Rannells  v.  Gerner,   80  Mo.  475;  Kiehne  v.  Wessell,  53  Mo.  App.  667.. 


432  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

competent  jurisdiction  cannot  be  attacked  on  the  ground  of  irreg- 
ularity in  a  criminal  prosecution,  in  which  the  authority  of  the 
appointee  to  make  a  demand  for  the  return  of  property  is  called  in 
question.1  So,  the  rule  has  been  laid  down  that  such  presumption 
remains  conclusive  as  long  as  the  adjudication  of  incapacity  re- 
mains in  force,2  though  there  be  no  acting  guardian.3  But,  on  the 
other  hand,  it  has  been  held  that  the  act  of  the  alleged  incompe- 
tent person  will  be  valid  where  he  is  actually  of  sound  mind, 
though  he  was  under  guardianship  at  the  time.4  And  that  it  is 
no  longer  conclusive  where  the  guardianship  has  been  terminated,6 
or  suspended  on  appeal,6  or  where  the  guardianship  has  been  prac- 
tically abandoned  and  the  alleged  incompetent  left  in  charge  of 
his  own  affairs.7  And  a  party  claiming  against  an  inquisition  may 
show  by  lapse  of  time  or  otherwise  that  the  patient  has  recovered 
and  become  again  able  to  contract,  which,  though  it  should  be 
done  on  motion  to  discharge  the  guardian,  may  be  allowed  in 
a  collateral  action.8  And  a  sale  of  real  property  by  a  person 
who  had  been  adjudged  insane  seven  years  before,  but  for  whom 
no  guardian  had  been  appointed,  and  who  had  in  the  interval 
recovered  her  reason,  is  voidable  only  and  not  void,  although 
there  had  been  no  adjudication  of  recovery.9 

The  doctrine  that  an  inquisition  is  conclusive,  however,  has  been 
held  to  be  applicable  to  contracts  and  gifts  only,  and  the  rule 
adopted  that  with  reference  to  wills  it  is  only  prima  facie  evidence 
of  incompetency.10    Thus,  a  judgment  declaring  a  testator  to  be  in- 

1  State  v.  Thompson,  28  Or.  296. 

« Hughes  v.  Jones,  116  K  T.  67,  5  L.  E.  A.  632;  Wadsworth  v.  Sharp- 
steen,  8  K  Y.  388;  L' Amoreaux  v.  Crosby,  2  Paige,  422;  Re  Patterson,  4 
How.  Pr.  34. 

3  Redden  v.  Baker,  86  Ind.  191. 

4  Breed  v.  Pratt,  18  Pick.  115;  Stone  v.  Damon,  12  Mass.  487. 
6  Willwerth  v.  Leonard,  166  Mass.  277. 

6  Grimes  v.  Shaw,  2  Tex.  Civ.  App.  20. 

7  Thorpe  v.  Hanscom,  64  Minn.  201. 

8  Southern  Tier  Masonic  Relief  Asso.  v.  Laudenbach,  5  N.  T.  Supp.  901; 
Clark  v.  Trail,  1  Met.  (Ky.)  35.  And  see  Lucas  v.  Parsons,  23  Ga.  267; 
Mutual  L.  Ins.  Co.  v.  WiswelL  56  Kan.  765,  35  L.  R.  A.  258. 

9  Topeka  "Water  Supply  Co.  v.  Root,  56  Kan.  187. 

10  Lewis  v.  Jones,  50  Barb.  645;  Southern  Tier  Masonic  Relief  Asso.  v. 
Laudenbach,  5  N.  T.  Supp.  901;  Stone  v.  Damon,  12  Mass.  487;  Breed  v. 
Pratt,  18  Pick.  115;  Harrison  v.  Bishop,  131  Ind.  161. 


LEGAL   ADJUDICATIONS    IN    CIVIL    CASES.  433 

sane  is  not  conclusive  of  his  incapacity  to  make  a  will  at  a  subse- 
quent time;1  and  a  court  of  equity  may  commit  the  property  of  a  per- 
son not  capable  of  managing  his  estate  to  the  charge  of  a  commit- 
tee and  still  give  effect  to  a  will  subsequently  made  by  him  while 
laboring  under  such  incapacity.2  But  an  inquisition  finding  a 
person  insane,  though  not  of  itself  establishing  incompetency  to 
make  a  will,  when  taken  in  connection  with  proof  that  he  died 
insane  is  sufficient  to  cast  the  burden  of  proof  of  testamentary 
capacity  upon  the  proponent  of  the  will.'  Nor  do  an  adjudica- 
tion that  a  person  is  insane,  and  the  appointment  of  a  guardian 
for  him,  necessarily  show  that  his  insanity  is  of  that  character 
which  disqualifies  him  from  making  a  valid  contract  so  as  to  ter- 
minate an  agency  which  he  had  previously  conferred  upon  his 
wife,  in  the  absence  of  proof  as  to  such  character.4 

So,  the  appointment  by  the  court  in  a  pending  action  of  a 
guardian  ad  litem  for  a  party  on  the  ground  of  insanity  is  prima 
facie  evidence  of  his  insanity  in  any  subsequent  stage  of  the  case/ 
And  the  determination  of  the  surrogate  or  a  higher  court  having 
power  to  review  his  decision,  with  relation  to  the  competency  of 
the  testator  to  make  a  will  of  personal  property,  is  not  conclusive 
upon  the  parties  in  a  subsequent  suit  as- to  the  validity  of  a  devise 
of  real  estate  in  the  same  will.6  And  where  a  testator  was  deter- 
mined to  be  compos  mentis  in  the  ecclesiastical  court,  and  that 
sentence  was  confirmed,  and  afterwards  on  trial  at  law  in  relation 
to  the  same  matter  he  was  found  to  be  nan  compos  mentis,  an 
application  for  a  reversal  of  the  sentence  will  be  dismissed,  as  it 
is  decisive  and  no  appeal  lies  from  it.7 

So,  the  fact  that  a  writ  de  lunatico  inquirendo  was  not  taken 
out  by  relatives  of  the  testator  is  a  circumstance  bearing  upon  the 
question  of  the  soundness  of  his  mind  when  he  made°  his  will.8 

1  Pittard  v.  Foster,  12  111.  App.  132;   Jenckes  v.  Smithfield  Probate  Ct 
2  E.  I.  255;   Ke  Slinger's  Will,  72  Wis.  22. 

2  Stewart  v.  Lispenard,  26  Wend.  255;   Brady  v.  McBride,  39  N.  J  Ea 
495.  '     '      1" 

3  Ee  Taylor's  Will,  1  Edni.  Sel.  Cas.  375. 

4  Motley  v.  Head,  43  Vt.  633. 

6  Little  v.  Little,  13  Gray,  264. 
*  Bogardus  v.  Clark,  4  Paige,  623. 
1  Maxwell  v.  Lord  Montague,  cited  in  3  Atk.  546. 
"  Irwin  v.  West,  81  Pa.  157. 
28 


434  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

But  an  inquisition  rinding  a  party  not  to  be  of  unsound  mind  is 
not  conclusive  evidence  of  his  sanity.1  And  a  verdict  determin- 
ing the  sanity  of  a  party  on  a  particular  day  is  not  prima  facie 
evidence  that  he  was  sane  at  a  prior  or  subsequent  date  so  as  to 
invalidate  a  contract  then  made.2  An  incompetent  person  need 
not  have  been  found  insane  upon  inquisition  to  warrant  the  annul- 
ment of  his  acts.3  A  commission  of  idiocy  finding  a  party  to  be 
of  sound  mind,  and  a  fine  and  recovery  suffered  by  him,  and  a 
warrant  of  attorney  made,  however,  are  conclusive  evidence  of 
sufficient  sanity  to  make  the  warrant  of  attorney  and  suffer  the 
recovery,  where  the  issue  upon  his  sanity  is  joined  after  his  death 
and  the  warrant  of  attorney  and  caption  of  the  fine  are  acknowl- 
edged before  the  chief  justice  at  the  same  time.*  But  a  finding- 
of  a  jury  that  a  person  whose  sanity  is  in  question  was  of  unsound 
mind,  not  stating  how  or  when  it  became  unsound,  and  not  find- 
ing him  to  be  an  idiot,  is  not  sufficient  to  support  an  inquisition 
and  render  it  admissible  as  prima  facie  evidence  of  his  idiocy.5 
And  an  inquisition  had  by  order  of  the  orphan's  court  as  to  the 
competency  of  a  person  whose  sanity  was  questioned  who  had  no 
notice  does  not  affect  his  rights  or  those  of  anyone  claiming 
under  him.5  But  the  appointment  of  a  conservator,  made  on 
application  of  four  selectmen  who  authorized  one  of  their  number 
to  inquire  into  the  case  and  make  the  application,  signing  their 
names,  is  not  subject  to  collateral  attack  under  a  statute  providing 
for  such  an  application  to  be  signed  by  the  persons  preferring  it.T 

§  8.  Effect  of  inquisition  on  over-reached  acts. 

The  rule  is  universal  that  an  inquisition  of  lunacy  is  prima  facie 

or  presumptive  evidence  only  of   the  invalidity  of   acts  done 

by  the  lunatic  before  the  issuing  of  the  commission,  but  which  is 

over-reached  by  the  finding.8     And  it  may  be  rebutted  by  proof 

1  Hume  v.  Burton,  1  Bidgw.  P.  C.  204. 

2  Emery  v.  Hoyt,  46  HI.  258. 

3  Pennington  v.  Thompson,  5  Del.  Ch.  328. 
*  Hume  v.  Burton,  1  Eidgw.  P.  C.  204. 

5  Christmas  v.  Mitchell,  3  Ired.  Eq.  535. 

6  MeCurry  v.  Hopper,  12  Ala.  823,  46  Am.  Dec.  2S0. 

7  State  v.  Hyde,  29  Conn.  564. 

8  Hopson  v.  Boyd,  6  B.  Mon.  296;  Wall  v.  Hill,  1  B.  Mon.  290,  36  Am. 
Dec.  578;   Harvey  v.  Sullens,  56  Mo.  372;   Gridley  v.  Boggs,  62  Cal.  201; 


LEOAL   ADJUDICATIONS   IN  CIVIL   CASES.  435 

of  soundness  of  mind  or  lucid  intervals,  and  that  the  act  in  que* 
t.on  was  done  daring  such  one  interval.'     And  an  issue  may  be  di- 

ZfJVqml  Whetlle''  °r  n0t  lle  Was  of  »nsound  'ni»« t  the 
time  0    the  performance  of  the  act.'     And  it  may  be  permitted 

to  be  traversed  by  a  party  with  whom  the  lunatic  contracted.' 

Nor  is  the  petitioner  in  the  inquisition,  or  other  parties  to  it, 

estopped  from  asserting  sanity  or  a  lucid  interval.'    The  mere 

tact  that  an  act  is  over-reached  by  an  inquisition  against  the  party 

does  not  render  it  prima  facie  invalid.'    An  inquisition  findtol  a 

par  y  to  be  insane  may  be  given  in  evidence,  however,  as  tending 

to  show  his  insanity  at  the  time  of  the  performance  of  a  previous 

act;   even  against  strangers  who  were  not  parties  to  the  inquisition  ' 

and  is  strongly  confirmatory  of  other  evidence  of  incompetency'- 

shifting  the  burden  of  proof  to  the  person  asserting  the  validly 

of  the  act.'    The  strength  of  the  presumption  of  insanity  of  a 

testator  arising  from  an  inquisition  finding  him  insane  is  to  be 

measured  with  a  view  to  all  the  circumstances  attending  the 

STS^T  "  «  ^  Eq-  389;  *■*■»«—«  -Crosby,  2  Paige 
Sh  Y  409  V  T-  "6  Nc  Y'  67'  5  L-  B'  A-  6S2-  B^er  v.  Banker 
Bal'  P  Tm    r  "  V-  SW6et'  51  N-  Y-  378;  Demelt  v.  Leonid   19 

How.  Pr.  140;   Le,™  v.  Jones,  50  Barb.  648;   Hicks  v  Marshall  Tw 
8  27;   Goodeu  v  Harrington,  3  Tkomp.  4  c.  345;  Be  Pattetf "kL  S* 
35    Kioto  v.  Klohs,  61  Pa.  245;  Imhof  v.  Witmer  31  Pa  24a*  t7' 
Titlow,  54  Pa.  224,  93  Am  Deo  691  ■  R„  p  wllmer.  31  Pa.  243;  Titlow  v. 
Am    tL„    «u     „,.;,'•  bM'  EeGanSwere's  Estate,  14  Pa  417  5<< 
Am.  Dec.   554;    WiUis  v.  Willis   19  Pa    ISO.    r>i     ,         «  ,,  UI|M 

HuibTozer  y-  sr  olee- 3  s  ^^t  woc„:drLi:rt: 

BaUnmT7°PbiiaSa^ \    W^olt^  X  ^  B°™^ 

1  tt'+  .  •  «      ,  185;  Frauk  v-  Mainwarinff,  2  Beav   115 
Hutchinson  v.  Sandt,  4  Rawle,  234,  26  Am   Deo   127-   t£  i 

Baum,  17  Phila.  633,  14  W.  N.  C.  185.  '   B°Wman  v'  Va» 

2  Frank  v.  Mainwaring,  2  Beav.  115 

^Palmer  v.  Parkhurst,  1  Ch.  Ca,  li2;  Tanger  v.  Skinner,  14  N.  J.  Eq. 

*  Ee  Gungwere's  Estate,  14  Pa.  417,  53  Am.  Dec.  554 

Jackson  v.  King,  4  Cow.  207;  Jacobs  v.  Richards,'  18  Beav    300-  TV 
parte  Bradbury,  3  Jur.  1108.  '  iLx 

6  Nichol  v.  Thomas,  53  Ind.  43. 

*  Hopson  v.  Boyd,  6  B.  Mon.  296;  Wall  v.  Boll,  1  B   Mon    290   W  a 
Dec.  578;   Griswold  v.  Miller,  15  Barb   523  '    6  ^ 

'Browning  v.  Reane,  2  PhiUim.  Eccl.  Rep.  69 
&  cGlass  v.  Hillary,  1  Pa.  Dist.  E.  628;   GoodeU  y  ^^  g  ^ 


436  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

inquisition,  and  would  be  greatly  diminished  by  the  fact  that  the 
proceedings  were  ex  parte  and  no  person  was  present  interested 
in  procuring  a  verdict  carrying  the  lunacy  back  to  the  particular 
period,  or  to  point  out  to  the  jury  the  effect  the  verdict  would  have 
upon  the  interests  of  others.1  And  greater  effect  will  be  given 
an  adjudication  of  idiocy  of  a  testator  made  two  years  after  the 
execution  of  his  will  as  evidence  of  incompetency  than  would  be 
given  an  inquisition  of  lunacy  made  at  such  time."  And  but 
slight  consideration  will  be  given  an  inquisition  of  previous  un- 
soundness as  against  strangers  to  the  inquisition,  especially  when 
it  does  not  expressly  find  the  party  to  have  been  an  idiot  from 
birth.3  So,  a  record  of  the  appointment  of  a  guardian  for  a  party 
will  not  be  considered  on  the  question  of  the  validity  of  an  act 
performed  by  Mm  where  the  proceeding  for  the  appointment  was 
long  subsequent  to  the  act.4  And  a  finding  upon  an  inquisition 
of  lunacy  that  a  testator  had  been  a  lunatic  for  three  years  is  not 
conclusive  of  such  lunacy  in  a  proceeding  to  contest  his  will  made 
during  such  three  years,  and  any  presumption  which  it  raises  is 
rebutted  by  proof  of  testamentary  capacity  at  the  time.5 

But  an  inquisition  finding  a  grantor  to  have  been  a  lunatic  for 
twent  yyears  is  sufficient  to  invalidate  a  deed  during  such  period 
made  for  an  inadequate  consideration  to  a  person  holding  a  situa- 
tion of  confidence  with  respect  to  the  grantor,6 

And  one  finding  a  grantor  to  have  been  a  lunatic  for  five  years 
is  prima  facie  evidence  of  incompetency  to  make  a  deed,  even 
against  a  grantee  taking  a  conveyance  four  years  prior  to  the 
finding.7  So,  a  finding  of  unsoundness  against  a  grantor  fifteen 
months  after  the  execution  of  his  deed  is  competent  evidence  on 
the  question  of  his  competency  to  make  it.8  And  a  finding  that 
a  grantor  had  been  a  lunatic  without  lucid  intervals  from  a  time 
anterior  to  the  date  of  Ms  conveyance  casts  a  sufficient  cloud 
upon  the  purchasers  title  to  warrant  him  in  coming  into  equity 

1  Bannatyne  v.  Bannatyne,  14  Eng.  B.  &  Eq.  581,  16  Jnr.  864. 
•  Tcwnsend  v.  Bogart,  5  Bedf.  93. 

3  Hopson  v.  Boyd,  6  B.  Mori.  296. 
i  Hovey  t.  Chase,  52  Me.  305. 

4  Brady  v.  McBride,  39  N.  J.  Eq.  495. 
«  Arnold  v.  Tovmsend,  14  PMla.  216. 

1  Bowman  v.  Van  Banm,  17  Phila.  633,  14  W.  N.  C.  185, 

5  Rider  v.  Miller,  86  K  T.  507. 


LEGAL    ADJUDICATIONS    IX    CIVIL    CASES. 


437 


for  relief.1  It  has  been  held,  however,  that  the  presumption  of 
business  capacity  at  the  time  a  deed  was  made  is  not  changed  by 
the  fact  that  on  that  date  an  application  was  made  for  the  ap- 
pointment of  a  guardian  for  the  grantor,  which  was  subsequently 
made.2  And  that  an  inquisition  found  against  a  husband  two 
days  after  his  marriage,  declaring  him  to  have  been  of  unsound 
mind  for  six  months,  is  only  presumptive  evidence  of  incapacity 
in  an  action  brought  to  avoid  the  marriage,  and  the  fact  that  the 
wife  had  notice  of  the  inquisition  does  not  make  it  conclusive.3 
And  that  an  order  appointing  a  guardian  for  a  testator,  though 
made  upon  the  same  day  that  his  will  was  made,  is  not  prima 
facie  evidence  of  testamentary  incapacity,  and  is  not  made  so  by 
a  recital  in  the  order  that  he  was  insane,  though  such  order  may 
be  put  in  evidence  as  bearing  upon  his  condition  ;4  and  the  sub- 
mission of  the  question  to  the  jury  in  such  a  case  whether  the 
testator  was  insane  the  day  the  will  was  made  and  the  guardian 
appointed  is  objectionable  as  tending  to  prepossess  the  minds  of 
the  jury  against  the  will  and  give  undue  prominence  to  the  fact 
of  the  appointment.6  So,  an  inquisition  of  lunacy  is  not  conclu- 
sive evidence  of  the  precise  period  at  which  the  lunacy  com- 
menced.6 And  a  decree  dismissing  a  petition  for  the  appoint- 
ment of  a  guardian  for  a  person  alleged  to  be  insane,  and  a 
verdict  and  judgment  on  appeal  in  favor  of  sanity,  are  not  con- 
clusive thereof  in  an  action  subsequently  brought  for  the  recov- 
ery of  land  conveyed  by  him  between  such  decree  and  verdict, 
but  may  be  given  in  evidence  as  tending  to  prove  sanity.7  An 
inquisition  has  no  effect  upon  the  validity  of  acts  performed  be- 
fore the  time  named  in  it  as  that  of  the  commencement  of  the 
period  of  lunacy.3     In  ISTew  York  the  inquiry  on  an  inquisition 

1  Yauger  v.  Skinner,  14  K  J.  Eq.  389. 

2  Doty  v.  Hubbard,  55  Vfc.  278. 

3  Banker  v.  Banker,  63  N.  Y.  409. 

4  Bice  v.  Bice,  50  Mich.  448,  53  Mich.  432.     And  see  Jones  v.  Hughes, 
15  Abb.  N.  C.  141. 

6  Bice  v.  Bice,  53  Mich.  432. 
6  Ex  parte  Bradbury,  3  Jur.  1108,  4  Dea.  202. 
1  Gibson  v.  Soper,  6  Gray,  279,  66  Am.  Dee.  414 

8  Sullivan  v.  Flynn,  9  Mackey,  396;  Shirleys  v.  Taylor,  5  B.  Mon.  99; 
Mutual  L.  Ins.  Co.  v.  Hunt,  79  N.  Y.  541;  Eippy  v.  Gant,  4  Ired.  Eq.  443. 


438  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

is  restricted  by  statute  to  competency  at  the  time  it  was  made.1 
But  notwithstanding  this  an  inquisition  finding  a  party  to  have 
been  a  lunatic  for  the  preceding  two  years  is  not  incompetent  as 
presumptive  evidence  even  against  third  persons,  and  its  submis- 
sion to  the  jury  with  the  instruction  that  it  is  not  conclusive  is 
not  error  in  the  absence  of  a  request  for  other  instructions.3 

§  9.  Effect  of  inquisition  with  respect  to  parties. 
Proceedings  in  lunacy  are  purely  ex  parte,  and  hence  conclu- 
sive only  upon  parties  or  privies  or  perhaps  upon  persons  dealing 
with  the  lunatic  under  the  inquisition.3  They  may  be  given  in 
evidence  for  the  purpose  of  showing  incompetency,  however, 
even  as  against  strangers,4  though  they  affect  the  rights  of  third 
persons,5  but  they  are  not  conclusive  as  to  them.6  An  inquisition 
is  only  presumptive T  or  prima  facie8  evidence  of  mental  inca- 
pacity as  to  a  person  who  was  not  a  party  to  the  proceeding,  and 
may   be  always  traversed 9  or  rebutted 10  by  such  person.     And 

1  Code  Civ.  Proc.  §  2335;  South  era  Tier  Masonic  Relief  Asso.  v.  Lau  den- 
bach,  5  N.  Y.  Supp.  901;  Dominick  v.  Dominick,  20  Abb.  N.  C.  286;  Ee 
Cook,  25  N.  X.  S.  R.  64;  Re  Demelt,  27  Hun,  480. 

2  Dominick  v.  Dominick,  20  Abb.  N.  C.  286.  But  see  Southern  Tier 
Masonic  Relief  Asso.  v.  Laudenbach,  5  N.  Y.  Supp.  901. 

3  Re  Draper's  Estate,  26  W.  N.  C.  218;  Hoyt  v.  Adee,  3  Lans.  173; 
Goodell  v.  Harrington,  3  Thomp.  &  C.  345;  Demelt  v.  Leonard,  19  How. 
Pr.  140;  Hart  v.  Deamer,  6  Wend.  497. 

4  Osterhout  v.  Shoemaker,  3  Hill,  513;  M'Creight  v.  Aiken,  Rice,  L.  56; 
Sergeson  v.  Sealey,  2  Atk.  412;  Frank  v.  Mainwaring,  2  Beav.  115;  Hall  v. 
Warner,  9  Ves.  Jr.  609.     And  see  Re  Covenhoven,  1  N.  J.  Eq.  27. 

5  Sergeson  v.  Sealey,  2  Atk.  412;  Hoyt  v.  Adee,  3  Lans.  173. 

*  Den,  Aber,  v.  Clark,  10  N.  J.  L.  258,  18  Am.  Dec.  417;  Osterhout  v. 
Shoemaker,  3  Hill,  513;  Rider  v.  Miller,  86  N.  Y.  507;  Cook  v.  Cook,  53 
Barb.  180;  Price  v.  Berrington,  2  Beav.  286;  Sergeson  v.  Sealey,  2  Atk. 
412. 

1  Rippy  v.  Gant,  4  Ired.  Eq.  443;  Christmas  v.  Mitchell,  3  Ired.  Eq.  535; 
Yan  Deusen  v.  Sweet,  51  N.  Y.  386;  Demelt  v.  Leonard,  19  How.  Pr.  141; 
Price  v.  Berrington,  2  Beav.  286. 

8  Hirsch  v.  Trainer,  3  Abb.  N.  C.  274;  Den,  Aber,  v.  Clark,  10  N.  J.  L. 
258,  18  Am.  Dec.  417;  WaU  v.  Hill,  1  B.  Mon.  290,  36  Am.  Dec.  578;  Hop- 
son  v.  Boyd,  6  B.  Mon.  296;  Moore  v.  Hershey,  90  Pa.  196;  Re  Draper's 
Estate,  26  W.  N.  C.  218. 

9  Sergeson  v.  Sealey,  2  Atk.  412;  Yauger  v.  Skinner,  14  N.  J.  Eq.  389; 
Re  Covenhoven,  1  N.  J.  Eq.  27;  Re  Christie,  5  Paige,  242. 

10  Christmas  v.  Mitchell,  3  Ired.  Eq.  535;  Moore  v.  Hershey,  90  Pa.  196. 


LEGAL   ADJUDICATIONS    IN    CIVIL    CASES.  439 

an  inquisition  of  lunacy  is  not  conclusive  against  a  person  not  a 
party  to  it  in  an  action  involving  the  validity  of  a  marriage  made 
by  the  person  found  to  be  a  lunatic,  and  when  admitted  in  evi- 
dence proof  that  he  was  of  sound  mind  may  be  introduced  with- 
out first  pursuing  the  procedure  technically  called  a  traverse  of 
the  inquisition.'  .  These  rules  with  reference  to  inquisitions  as  evi- 
dence are  applied  in  New  York,  where  they  are  held  to  be  con- 
clusive as  between  the  parties.2 

But  while  an  inquisition  finding  the  insanity  of  a  party  is  not 
binding  as  against  third  parties,  it  destroys  the  presumption  in 
favor  of  sanity,  and  casts  the  burden  of  showing  it  upon  the  party 
alleging  it.3  And  a  verdict  on  an  inquisition  that  a  testator  was 
insane  is  sufficient  to  rebut  the  presumption  in  favor  of  the  will 
and  require  the  propounder  to  prove  its  execution  during  a  lucid 
interval,  though  the  proceeding  was  ex  parte  and  the  jury  had 
no  conception  of  the  effect  of  their  verdict  upon  the  will,'4  though 
it  has  been  held  to  be  of  little  weight  unless  it  finds  idiocy  from 
birth.5  So,  the  certificate  of  a  judge  given  pursuant  to  a  positive 
law  for  the  purpose  of  the  confinement  of  a  person  in  a  lunatic 
asylum  is  an  adjudication  upon  the  subject  of  lunacy  in  rem,  and 
prima  facie  evidence  of  the  existence  of  facts  asserted  therein  as 
against  all  notified  to  attend  the  hearing  and  investigation  before 
such  judge.6  A  petitioner  in  lunacy  proceedings  is  not  a  party 
to  the  record  so  as  to  be  personally  estopped  by  the  finding  of 
the  jury,  except  as  all  the  world  is  estopped.7 

§  10.  Evidence  to  rebut  inquisition. 
Where  a  person  has  been  adjudged  to  be  of  unsound  mind  and 
placed  under  guardianship,  which  adjudication  remains  in  force, 
those  who  seek  to  establish  the  validity  of  his  acts  must  show  by 
clear,  explicit,  and  satisfactory  evidence  that  he  had  at  the  time 
•such  mental  capacity  and  freedom  of  will  as  are  required  to  ren- 

1  Den,  Aber,  v.  Clark,  10  N.  J.  L.  258,  18  Am.  Dec.  417. 
8  Hoyt  v.  Adee,  3  Dans.  173. 

3  Snook  v.  Watts,  11  Beav.  105. 

4  Bannatyne  v.  Bannatyne,  14  Eng.  L.  &  Eq.  581,  16  Jur.  864. 
6  Hopson  v.  Boyd,  6  B.  Mon.  296. 

6  Monroe  County  v.  Budlong,  51  Barb.  493. 
Hughes  v.  Jones,  116  N.  Y.  67,  5  L.  B.  A.  632. 


440  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

der  them  valid; '  or  that  such  a  consideration  had  been  received  that 
justice  and  equity  would  require  the  enforcement  of  the  obliga- 
tion.2 And  a  will  made  by  a  person  who  had  been  afflicted  with 
delusions,  against  whom  a  commission  had  issued,  which  was  not 
superseded,  and  who  had  never  quitted  the  asylum,  will  not  be 
admitted  to  probate  though  he  appeared  to  have  recovered  his 
sanity  and  his  delusions  were  no  longer  apparent,  in  the  absence 
of  clear  and  convincing  proof  that  he  had  become  sane  and  capa- 
ble.3 Nor  will  the  court  on  appeal  in  an  action  for  the  appoint- 
ment of  a  guardian  in  which  the  party  was  twice  adjudged  men- 
tally incompetent  set  aside  the  findings  of  the  lower  courts  in  the 
absence  of  a  strong  showing  of  sanity.4  The  fact  that  a  commis- 
sion de  lunatico  inquirendo  was  issued  against  a  testator  covering 
the  time  at  which  his  will  was  made,  however,  will  not  invalidate 
it  where  full  capacity  is  shown  by  the  subscribing  witnesses  and 
others  who  give  minute  accounts  of  what  he  said  and  did  at  that 
time.6  And  it  need  not  be  capacity  to  transact  business  with 
judgment  and  discretion,  as  indiscretion  and  defects  of  judgment 
may  coexist  with  legal  capacity.6  And  an  inquisition  finding  a 
grantor  to  be  a  lunatic  with  lucid  intervals,  and  that  he  had  been 
in  the  same  state  of  lunacy  for  twenty  years,  cannot  overcome 
testimony  as  to  his  sanity  at  the  time  of  the  execution  of  his  deed.T 
Nor  will  a  will  of  a  testator,  afterwards  found  to  be  of  unsound 
mind  from  a  date  anterior  to  that  of  the  will,  be  refused  probate 
where  there  is  nothing  on  its  face  sounding  in  folly ; 8  or  where 
the  disposition  was  the  same  as  that  made  by  a  previous  will, 
when  the  sanity  of  the  testator  was  unquestionable.9  And  the 
fact  that  a  contract  is  over-reached  by  an  inquisition  does  not  jus- 
tify setting  it  aside  where  it  is  fair  and  was  made  without  notice 
of  the  incompetency  to  the  other  party,  especially  where  the  par- 

1  Stevens  v.  Stevens,  127  Ind.  560;  Breed  v.  Pratt,  18  Pick.  115. 
8  Hicks  v.  Marshall,  8  Hun,  327. 

3  Grimani  v.  Draper,  6  Notes  of  Cases,  418. 

4  Sponable  v.  Hanson,  87  Mich.  201. 

8  Pvodd  v.  Lewis,  2  Lee,  Eccl.  Rep.  176. 

6  Wall  v.  Hill,  1  B.  Mon.  290,  36  Am.  Dec.  578. 

1  Craig  v.  Feland,  4  T.  B.  Mon.  232. 

8  Be  Watts,  1  Curt.  EccL  Bep.  594. 

9  Be  Pendleton,  1  Connoly,  480. 


LEGAL    ADJUDICATIONS    IN   CIVIL    CASES.  441 

ties  cannot  be  reinstated,'  or  where  the  goods  procured  thereby 
were  suited  to  the  situation  of  the  buyer.2  So,  members  of  an  in- 
quest which  found  a  grantor  to  be  of  unsound  mind  are  compe- 
tent witnesses  to  prove  unsoundness  of  mind  or  a  lucid  interval 
where  the  facts  are  within  their  knowledge,  but  they  cannot  be 
examined  for  the.purpose  of  proving  their  opinions  as  to  the  nature 
of  their  finding,  and  what  they  intended  by  it,3  or  for  the  purpose 
of  impeaching  the  regularity  of  their  finding.4 

§  11.  When  superseded. 
One  who  has  been  adjudged  a  person  of  unsound  mind  and  in- 
capable of  managing  his  person  and  property  is  entitled  to  have 
the  commission  superseded  where  he  has  recovered  his  mind.1 
The  test  of  recovery  which  will  authorize  the  discharge  of  a  com- 
mission is  the  return  of  the  natural  and  healthy  state  of  the 
emotions,  absence  of  insane  ideas  and  delusions,  and  a  practical 
and  reasonable  conduct,  and  the  possession  of  sufficient  powers  of 
attentive  memory  and  judgment  to  enable  the  party  to  take  his 
part  as  a  member  of  society.6  It  is  not  necessary  that  the  mind 
should  be  restored  to  its  original  state,  it  is  sufficient  if  the  party 
is  competent  for  common  purposes,  as  to  make  a  will  of  personal 
estate  ; 7  the  question  for  the  consideration  of  the  jury  in  a  pro- 
ceeding to  set  aside  a  guardianship  being,  Is  the  party  now  of 
sound  mind  and  capable  of  managing  his  estate/  It  is  fitness  to 
manage  the  common  and  ordinary  affairs  of  life,  however,  and 
not  competency  proportioned  to  the  extent  of  the  lunatic's  estate, 
which  will  warrant  a  discharge  of  his  committee.9  But  a  com- 
mission in  lunacy  will  not  be  at  once  superseded  on  the  ground  of 
the  recovery  of  the  lunatic  on  evidence  that  he  no  longer  exhib- 

1  Neill  v.  Morley,  9  Ves.  Jr.  478. 

2  Baxter  v.  Portsmouth,  5  Barn.  &  C.  171,  2  Car.  &  P.  178. 
'Hutchinson  v.  Sandt,  4  Eawle,  234,  26  Am.  Dec.  127;  Bowman  v  Van- 

Baum,  17  Phila.  633,  14  W.  N.  C.  185. 

4  Bowman  v.  VanBaum,  17  Phila.  633,  14  W.  N.  C.  185. 

5Greenwade  v.  Green  wade,  43  Md.  313;  Ex  parte  Drayton,  1  Desauss 
Eq.  144;  Be  Rogers,  5  N.  J.  Eq.  46. 

0  Ee  Brugh,  61  Hun,  193. 

1  Be  Holyland,  11  Ves.  Jr.  10. 

*  Cochran  v.  Amsden,  104  Ind.  282. 
9  Be  Mason,  60  Hun,  46. 


44i4  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

itcd  unsoundness  of  mind  but  will  be  ordered  to  stand  over  until 
it  can  be  seen  what  will  be  the  effect  of  the  removal  of  the  re- 
straint.1 And  if  a  person  under  guardianship  is  found  upon  a 
proceeding  to  set  it  aside  not  to  be  so  far  restored  to  reason  as  to 
be  capable  of  understanding  all  ordinary  affairs  of  life  the  guard- 
ianship will  be  continued.'2  So,  a  commission  in  lunacj  will  not 
be  superseded  where  the  party  is  liable  at  any  moment  to  be  ex- 
cited beyond  his  power  of  control,  and  require  constant  super- 
vision and  care  to  prevent  the  squandering  of  his  property,  though 
he  at  times  acts  like  a  sane  man.3  Nor  will  a  commission  be  su- 
perseded where  the  inquisition  had  found  the  party  to  be  a  lunatic 
with  lucid  intervals,  and  he  had  had  frequent  relapses,  but  should 
be  suspended  for  a  time  to  see  if  recovery  is  perfect.4  Nor  will  a 
committee  be  discharged  upon  a  claim  that  the  lunatic  had  so  far 
recovered  as  to  be  able  to  govern  himself,  where  it  does  not  ap- 
pear that  he  was  also  competent  to  manage  his  estate,  and  no  ap- 
plication was  made  for  the  discharge  of  the  committee  of  the 
estate.6  And  a  verdict  finding  the  person  incapable  of  managing 
his  estate  is  responsive  to  the  issue  in  a  proceeding  to  set  aside  a 
guardianship,  and  a  judgment  continuing  the  guardianship  is 
proper.6  So  the  continuance  of  an  insane  delusion  on  the  part  of 
a  person  against  whom  a  commission  had  issued  is  sufficient  to 
prevent  the  court  from  superseding  the  commission  though  its 
existence  was  not  distinctly  manifested.7 

One  who  has  been  adjudged  a  person  of  unsound  mind  and  in- 
capable of  the  management  of  his  person  and  property  must  fur- 
nish proof  of  recovery  upon  an  application  to  have  the  commission 
suspended.8  And  the  absence  of  any  disorder,  especially  of  a 
dangerous  tendency,  must  be  satisfactorily  established  by  the  evi- 
dence of  persons  having  competent  knowledge  of  the  whole  sub- 

1  Ee  Blackmore,  1  DeG.  J.  &  S.  84.  And  see  Hovey  v.  Harmon,  49  Me. 
269;  Ee  Burr,  2  Barb.  Ch.  208;  Ee  Eogers,  5  N.  J.  Eq.  46. 

2  Cochran  v.  Amsden,  104  Ind.  282. 
'Re  Helmbold,  12  Phila.  424. 

4  Ex  parte  Ferrars,  Mosely,  332. 

6EeBurr,  17  Barb.  9. 

6  Cochran  v.  Amsden,  104  Ind.  282. 

'  Ee  Dyce  Sombre,  13  Jur.  857,  1  Macn.  &  G.  116. 

8  Greenwade  v.  Greenwade,  43  Md.  313. 


LEGAL    ADJUDICATIONS   IN    CIVIL   CASES.  443 

ject,  not  only  as  to  the  present  state,  but  with  reference  to  the 
former  incompetency.'  And  evidence  which  will  warrant  the 
court  in  superseding  a  commission  is  usually  required  to  be  stronger 
in  favor  of  sanity  than  what  would  have  prevented  the  commis- 
sion originally.2  The  most  satisfactory  proof  of  recovery  is  the 
conviction  on  the  .part  of  the  patient  of  the  non-reality  of  the  de- 
lusion which  arises  from  his  disease.3  And  a  complaint  in  an 
action  by  a  person  under  guardianship  as  of  unsound  mind  in  an 
action  brought  by  him  to  impeach  sales  of  his  property  made  by 
the  guardian,  alleging  that  such  sales  occurred  before  he  was  re- 
leased from  the  disability  under  which  he  was  held,  does  not  show 
a  termination  of  the  guardianship."  The  provision  of  the  Cali- 
fornia Code  of  Civil  Procedure,6  authorizing  the  court  to  restore 
a  person  adjudged  insane  or  incompetent,  is  only  applicable  to 
those  for  whom  guardians  had  been  appointed,  and  cannot  be  ap- 
plied to  the  order  of  a  judge  committing  a  person  to  the  state 
insane  hospital  under  the  provisions  of  the  Political  Code.8 

XYIII.   Right  to  restrain. 

§  1.   General  rules  as  to  confinement. 

An  alleged  lunatic  should  not  be  restrained  unless  the  case  is  a 
proper  one  for  confinement.7  Commitment  to  the  hospital  for 
the  insane  is  a  very  different  thing  from  an  inquisition  of  lunacy, 
as  in  such  a  proceeding  the  status  of  the  party  is  fixed  as  to  all 
the  world  while  the  statutory  inquiry  with  reference  to  confine- 
ment in  an  asylum  is  restricted  to  one  specific  purpose.8  A  person 
should  not  be  confined  in  an  asylum  unless  actually  insane9  and 
his  welfare  or  the  safety  of  others  require  it,10  though  confinement 

1  Be  Holyland,  11  Ves.  Jr.  10. 

2  Ee  Dyce  Sombre,  13  Jur.  857,  1  Macn.  &  G.  116. 

3  Re  Dyce  Sombre,  13  Jur.  857,  1  Macn.  &  G.  116. 

4  Robeson  v.  Martin,  93  Ind.  420. 
6  Cal.  Code  Civ.  Proc.  §  1766. 

6  Kellogg  v.  Cochran,  87  Cal.  192,  12  L.  R.  A.  104. 
1  Com.,  Draper,  v.  Kirkbride,  3  Brewst.  393. 

8  Goodwin  v.  State,  96  Ind.  550. 

9  "Van  Deusen  v.  Newcomer,  40  Mich..  90. 

10  Com.,  Rubright,  v.  "Western  Pa.  Hospital,  3  Pittsb.  299;  Com.,  Draper, 
v.  Kirkbride,  3  Brewst.  393;  Com.,  Nyce,  v.  Kirkbride,  2  Brewst.  400; 
Anderdon  v.  Burrows,  4  Car.  &  P.  210. 


444  MEDICAL   JUEISPEUDEXCE    OF    INSANITY. 

•:  a  langerous  lunatic  is  always  justifiable.1  The  right  to  restrain 
an  insane  person  has  its  foundation  in  reasonable  necessity,  and 
an  officer  cannot  arrest  such  a  person  without  a  warrant  on  the 
ground  of  insanity  unless  he  is  dangerous  to  himself  or  others.* 
But  it  is  just  as  competent  for  a  magistrate  as  conservator  to  order 
into  custody  an  insane  man  who  is  committing  a  breach  of  the 
peace  as  to  order  the  arrest  of  a  sane  person  under  like  circum- 
stance-.1 And  a  person  who  is  so  insane  that  it  would  be  dan- 
gerous to  suffer  him  to  be  at  liberty  may  be  confined  from  the 
necessity  of  the  case  by  any  person  without  a  warrant  until  proper 
proceedings  can  be  had  for  the  appointment  of  a  guardian/  So, 
a  magistrate  is  not  deprived  of  his  authority  to  commit  an  insane 
person  whom  he  believes  to  be  dangerous  to  an  insane  asylum  by 
the  fact  that  upon  suggestion  of  insanity  before  trial  under  an 
indictment  a  commission  was  appointed  to  inquire  into  his  mental 
condition,  which  reported  lim  insane,  and  the  judge  of  the  crim- 
inal court  remanded  him  to  prison.5  But  where  proceedings  are 
commenced  and  abandoned,  and  the  imprisonment  still  continues, 
the  authority  is  abused  and  the  party  causing  it  becomes  a  trespasser 
ah  initio.*  J$o  man  can  be  deprived  of  his  liberty  without  due 
process  of  law,  whether  the  alleged  cause  of  detention  is  insanity  or 
crime.7  And  an  adjudication  withont  notice,  under  which  the  party 
is  confined,  is  void  where  the  statute  gives  him  the  right  to  be  pres- 
ent at  the  trial,'  though  proceedings  for  the  confinement  of  the 
insane  are  not  in  conflict  with  a  constitutional  guaranty  against 
deprivation  of  personal  liberty  without  trial  by  jury,  such  provi- 
sions applying  to  criminal  prosecutions  only."  So,  the  question  in 
an  action  for  damages  for  restraining  a  person  of  his  liberty  as  a 

:  Van  Deusen  v.  Newcomer,  40  Mich.  90;  Scott  v.  Wakeni,  3  Fost.  &  F. 
328;  Brookskaw  v.  Hopkins,  Lofft,  243. 

-  Look  v.  Dean,  108  Mass.  116,  11  Am.  Rep.  323. 
*Lottv.  Sweet,  33  Mich.  308. 

4  Colby  t.  Jackson,  12  N.  H.  526;  Davis  v.  Merrill,  47  K.  H.  208;  Van 
Deusem  v.  Newcomer,  40  Mick.  90.  And  see  Be  Sherman's  Petition,  17 
B.I.  356l 

5  Stole,  Kennedy,  v.  TJniacke,  48  La.  Ann  1230. 
*  Colby  v.  Jackson,  12  N.  H.  526. 

1  Com.,  Stewart,  v.  Kirkbride,  2  Brewst.  419. 

s  Be  WeHman,  3  Kan.  App.  100. 

s  Black  Hawk  Comity  v.  Springer,  58  Iowa,  417. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  445 

Innatic  is  whether  his  safety  or  that  of  his  family  or  friends  or 
neighbors  requires  that  he  should  be  restrained,  and  whether  such 
restraint  is  necessary  for  his  restoration,  or  will  be  conducive 
thereto.1  And  a  person  confined  in  an  asylum  will  be  discharged, 
on  habeas  corpus  if  the  evidence  as  to  his  sanity  is  evenly  bal- 
anced, unless  it  be  clearly  shown  that  the  public  peace  or  morals, 
or  the  interests  of  the  person  and  his  family,  imperatively  demand 
his  detention.3  That  the  property  of  others  is  endangered  by  the 
mental  unsoundness  of  a  person  at  large  on  bail  gives  no  authority 
under  the  Alabama  Code.  §  1160,  providing  for  an  inquiry  and  the 
removal  to  a  lunatic  asylum  of  persons  in  confinement  under  indict- 
ment, to  order  the  confinement  of  such  person  therein.3  And  a 
mere  unchangeable  belief  in  things  which  have  no  existence,  on 
the  part  of  an  ignorant  man.  is  not  such  insanity  as  will  authorize 
his  confinement  in  an  asylum.5  But  a  fixed  belief  in  an  unnatural 
or  disgraceful  state  of  affairs,  existing  beyond  and  in  a  direction 
entirely  contrary  to  the  ordinary  elements  of  rational  belief  with- 
out cause,  might  be  sufficient.6  And  a  person  restrained  in  an 
asylum  is  not  entitled  to  a  discharge  on  habeas  corpus  where  he  is 
imbecile  and  unable  to  take  care  of  himself.6  And  one  who  though 
originally  bright  has  lost  her  mind  from  epilepsy,  and  become 
unable  to  take  the  slightest  care  of  herself,  though  not  an  idiot, 
is  an  insane  person  within  the  meaning  of  the  provisions  of  the 
Iowa  Code,  for  the  care  of  the  insane.7  So.  one  whose  mind  is  so 
affected  by  disease  that  it  is  necessary  for  his  own  good  to  put 
him  under  restraint  is  a  lunatic  within  8  &  9  Vict.  chap.  100, 
§  44.  prohibiting  the  receiving  of  lunatics  into  a  house  not  duly 
licensed  or  registered.5  And  the  finding  of  a  duly  appointed  com- 
mission de  lunatico  mquirendo  is  not  conclusive  on  the  question 
of  the  propriety  of  the  confinement  of  a  person  in  an  asylum  on 
a  prosecution  against  her  husband  for  conspiracy  to  confine  her 

1  Hinchman  v.  Richie.  Brightly,  143. 

5  Be  Green's  Case,  12  Pa.  Co.  Ct  295. 

;  Ex  parte  Trice,  53  Ala.  546. 

i  Com.,  Bnbright,  t.  Western  Pa.  Hospital.  3  Pittsb.  299. 

5  Com.,  Bubright,  v.  Western  Pa.  Hospital,  3  Pittsb.  299. 

s  Com.,  Haskell,  v.  Kirkbride,  3  Breast.  5S6. 

'  Speedling  v.  Worth  County.  68  Iowa,  152. 

8  Beg.  v.  Bishop,  14  Cox,  C.  C.  404. 


446  MEDICAL   JURISPRUDENCE    OF   INSANITY". 

in  an  asylum.1  And  as  a  general  rule  the  committee  of  a  lunatic 
should  confine  him  only  when  authorized  to  do  so  by  the  court.* 
And  a  statement  in  a  medical  certificate  upon  which  a  lunatic  is 
confined  that  the  physician  had  formed  his  opinion  from  conver- 
sations with  her,  and  the  fact  that  she  labored  under  delusions 
and  was  dirty  and  indecent  in  the  extreme,  is  sufficient  under  a 
statute  requiring  him  to  specify  the  facts  upon  which  his  opinion 
was  based/ 

§  2.  Discharge  from  confinement. 
A  lunatic  who  recovers  his  sanity  should  be  delivered  out  of 
custody,  and  for  that  purpose  may  petition  to  be  inspected,  but 
the  question  of  recovery  is  not  to  be  tried  by  inspection  only,  but 
by  examining  witnesses  upon  the  question  of  the  probable  continu- 
ance of  the  insanity.4  And  while  it  has  been  held  that  the  ques- 
tion whether  or  not  restraint  would  be  beneficial  is  one  for  the 
court,5  the  general  rule  would  seem  to  be  that  no  person  can  be  de- 
prived of  his  personal  liberty  without  the  intervention  of  a  jury; 6 
and  that  in  cases  of  lunacy  the  verdict  of  the  jury  is  to  be  founded, 
as  in  other  cases,  upon  satisfactory  and  unexceptional  evidence  sub- 
mitted to  their  consideration.7  A  person  confined  upon  an  allega- 
tion of  lunacy  will  be  discharged  on  habeas  corpus  where  it  appears 
that  there  were  no  indications  of  danger  to  himself  or  to  others 
or  to  his  estate.8  But  to  warrant  a  discharge  of  a  person  acquitted 
of  homicide  on  the  ground  of  insanity  the  evidence  must  show, 
not  only  the  restoration  of  sanity,  but  also  that  it  was  safe  for  the 
accused  to  be  at  large.9  Sanity  is  presumed  on  an  application  for 
a  discharge  from  an  asylum,  and  the  evidence  should  preponderate 
for  the  respondent  to  overcome  such  presumption.1"  And  the  rule 
that  a  doubt  on  a  criminal  accusation  should  be  resolved  in  favor 

1  Com.  v.  Spink,  137  Pa.  255. 

2  Corn.,  Draper,  v.  Kirkbride,  3  Brewst.  393. 

3  Ee  Skuttleworth,  11  Jur.  41. 

4  Ash's  Case,  Freem.  Ch.  259;  People,  Fullerton,  v.  Gilbert,  115  HI.  59. 

5  Com.,  Draper,  v.  Kirkbride,  3  Brewst.  393. 
«  Be  Dey,  9  N.  J.  Eq.  181. 

1  Be  Dey,  9  N.  J.  Eq.  181. 

8  Com.  v.  Kirkbride,  7  Phila.  8;  People,  Fullerton,  v.  Gilbert,  115  Bl.  59. 

9  Com.,  Bickel,  v.  Bennet,  15  W.  N.  C.  515. 

10  Com.,  Hembold,  v.  Kirkbride,  11  Phila.  427. 


LEGAL    ADJUDICATIONS    IN    CIVIL    CASES.  447 

of  the  accused,  applies  in  favor  of  sanity  in  a  proceeding  by  habeas 
corpus  for  discharge  from  an  asylum.1  But  the  court  will  not 
reject  as  erroneous  the  uncontradicted  opinions  of  unprejudiced 
experts  of  high  standing  that  the  party  is  insane,  simply  be- 
cause of  its  inability  to  detect  the  existence  of  mental  disorder.* 
And  the  fact  that  a  lawj^er  who  had  been  confined  in  an  asylum 
conducts  his  own  case  on  habeas  corpus  with  composure  and  skill 
is  not  sufficient  to  warrant  his  release  where  the  evidence  shows 
that  he  is  afflicted  with  paresis,  which  is  attended  with  mental 
delusion  and  is  characterized  by  a  tendency  to  commit  acts  of 
violence  and  aggression  ;  and  that  at  intervals  the  patient  will 
appear  to  be  quite  well  but  will  soon  lapse  into  his  former  con- 
dition.3 The  power  to  discharge  a  person  alleged  to  be  insane, 
and  received  in  the  state  insane  asylum,  except  upon  habeas  corpus, 
is  vested  in  California  exclusively  in  the  officers  of  the  asylum, 
which  includes  the  power  to  determine  whether  or  not  he  had 
recovered,  and  to  discharge  persons  improperly  committed;  and  the 
effect  of  such  a  discharge  where  no  guardian  has  been  appointed 
is  to  restore  the  discharged  person  to  legal  capacity.4  A  dangerous 
lunatic  should  not  be  restored  to  liberty,  however,  upon  the  mere 
ground  of  informality  of  the  certificates  upon  which  he  was  con- 
fined.6    Discharge  is  prima  facie  evidence  of  restoration.8 

1  Com.,  Hernbolcl,  v.  Kirkbride,  11  Phila.  427. 

2  Ee  Sherman's  Petition,  17  E.  I.  356. 

3  Com.,  Norton,  v.  Chapin,  19  Phila.  551. 

4  Kellogg  v.  Cochran,  87  Cal.  1S2,  12  L.  E.  A.  104. 

6  Ee  Shuttleworth,  11  Jur.  41.     And  see  Ee  Latta,  43  Kan.  533. 
6  Hajnes  v.  Swann,  6  Heisk.  560. 


CHAPTEK  X. 

EVIDENCE  OF  INSANITY. 

I.  Presumption  and  burden  of  proof. 

§  1.  Presumption  of  sanity. 

§  2.  Burden  of  proof  of  insanity  —  generally. 

§  3.  Burden  of  proof  in  criminal  cases. 

§  4.  Burden  of  proof  in  icill  cases. 
II.  Measure  of  proof. 

§  1.   Conflicting  character  of  the  criminal  cases. 

§  2.  Beyond  a  reasonable  doubt. 

§  3.  Preponderance  of  proof. 

§  4.  Reasonable  doubt  of  insanity. 

§  5.  Measure  of  proof  in  civil  cases. 
III.  Presumption  of  continuance. 

§  1.  Habitual  insanity. 

%  2.   Temporary  insanity. 

§  3.  Habitual  and  temporary  insanity  distinguished. 

§  4.  Presumption  of  continuance  of  a  lucid  interval. 
rV.  Competency  and  admissibility. 

§  1.  Previous  and  subsequent  condition  of  mind. 

§•  2.  The  act  itself. 

§  3.  Former  wills  and  deeds. 

§  4.  Declarations  and  admissions  of  the  parly. 

§  5.  Declarations  and  admissions  of  other  interested  persons. 

§  6.  Letters  and  private  writings. 

§  7.  Acts  and  conduct. 

§  8.  Surrounding  circumstances. 

§  9.  Relationship  between  the  parties  interested. 

§10.  Physical  and  mental  condition. 

§11.  Hereditary  insanity. 

§12.  Reputation  and  hearsay. 

§13.  Adjudications  and  certificates  of  lunacy. 
V.  Expert  and  opinion  evidence. 

§  1.  Admissibility  of  opinions  of  experts — generaUy. 

§  2.   Opinions  founded  on  examination. 

§  3.  Opinions  based  upon  the  evidence. 

§  4.   Opinions  upon  hypothetical  questions. 

§  5.  Qualification  of  experts. 

§  6.  Scope  of  opinion  of  experts. 

§  7.  Cross-examination  of  experts. 

§  8.  General  rule  as  to  nonexpert  opinions. 

§  9.  Exceptions  to  the  general  rule. 

§10.    Who  may  give. 

§11.  The  acquaintance  necessary. 
US 


EVIDENCE    OF    INSANITY.  44:9 

V.  Expert  and  opinion  evidence. — Continued. 
§12.  Knowledge  which  will  warrant  an  opinion. 
§13.  Facts  which  may  be  shown  as  a  basis  for  an  opinion. 
§14.  Scope  of  opinions  of  non-experts. 
§15.   Opinions  covering  the  question  at  issue. 
§16.   Time  to  which  opinion  evidence  relates. 
§17.    Weight — expert  opinion. 
§18.    Weight — non- expert  opinions. 
VI.  Attesting  witnesses. 
VII.  Books. 

I.  Presumption  and  burden  of  proof. 

§  1.  Presuyn/ption  of  sanity. 

The  rule  is  universal  that  everyone  is  presumed  to  be  sane  and 
of  sound  mind  until  the  contrary  appears.1  It  applies  to  prose- 
cutions for  criminal  acts,  and  every  person  is  presumed  to  be  sane, 
or  to  possess  a  sufficient  degree  of  reason  to  be  responsible  for 
his  criminal  acts,  until  the  contrary  is  shown,2  though  he  was 
born  deaf  and  dumb  and  had  never  received  special  religious  or 

1  Armstrong  v.  Timmons,  3  Harr.  (Del.)  342;  Duffield  v.  Robeson,  2 
Harr.  (Del.)  375;  Ethridge  v.  Bennett,  9  Houst.  (Del.)  295;  Lodge  v. 
Lodge,  2  Houst.  (Del.)  419;  Doe,  Guest,  v.  Besson,  2  Houst.  (Del.)  246; 
Beeve  v.  Bonwill,  5  Del.  Cli.  1;  Humphreys  v.  State,  45  Ga.  190;  Argo  v. 
Coffin,  142  IU.  368;  Menkins  v.  Lightner,  18  IU.  282;  Montag  v.  People,  141 
IU.  75;  Guild  v.  Hull,  127  111.  523;  Chicago  W.  D.  B.  Co.  v.  MiUs,  91  HI.  39; 
Titcomb  v.  Vantyle,  84  111.  371;  Fisher  v.  People,  23  HI.  283;  Wallis  v. 
Luhring,  134  Ind.  447;  Herbert  v.  Berrier,  81  Ind.  1;  Bush  v.  Megee,  36 
Ind.  69;  Dearmond  v.  Dearmond,  12  Ind.  455;  State  v.  Coleman,  27  La. 
Ann.  691;  Chandler  v.  Barrett,  21  La.  Ann.  58,  99  Am.  Dec.  701;  Higginsv. 
Carlton,  28  Md.  115,  92  Am.  Dec.  666;  Bicketts  v.  Jolliff,  62  Miss.  440; 
Mullinsv.  Cottrell,  41  Miss.  291;  State  v.  Wright,  134  Mo.  404;  Jackson 
v.  Hardin,  83  Mo.  175;  Perkins  v.  Perkins,  39  N.  H.  163;  North  Bruns- 
wick Twp.  Bd.  of  Health  v.  Lederer,  52  N.  J.  Eq.  675;  Jackson  v.  King,  4 
Cow.  207,  15  Am.  Dec.  354;  Ean  v.  Snyder,  46  Barb.  230;  Jackson  v.  Van 
Duzen,  5  Johns.  144;  Delafield  v.  Parish,  25  N.  Y.  9;  Odom  v.  Biddick,  104 
N.  C.  515,  7  L,  B.  A.  118;  Ballew  v.  Clark,  2  Led.  L.  23;  Pennypacker  v. 
Pennypacker  (Pa.)  7  Cent.  Bep.  532;  Miller  v.  Rutledge,  82  Va.  863;  Hiett 
v.  Shull,  36  W.  Va.  563;  McNaghten's  Case,  10  Clark  &  F.  200;  Long  v. 
Long,  4  Ir.  Ch.  106;  Groom  v.  Thomas,  2  Hagg.  Eccl.  Rep.  433. 

*  McKenzie  v.  State,  26  Ark.  334;  People  v.  McNulty,  93  Cal.  427;  Peo- 
ple v.  Travers,  88  Cal.  233;  State  v.  Beidell,  9  Houst.  (Del.)  470;  State  v. 
Harrigan,  9  Houst.  (Del.)  369;  State  v.  Draper,  1  Houst.  Crhn.  Rep.  291; 
29 


450  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

moral  instructions.1  And  where  there  is  no  evidence  tending  to 
show  insanity  at  the  time  of  the  offense,  the  action  of  the  court 
in  refusing  or  giving  instructions  on  the  subject  of  insanity  will 
not  be  reviewed  on  appeal.2  Xor  is  an  instruction  in  a  criminal 
action  that  every  man  is  supposed  to  be  sane  and  responsible  for 
his  acts  until  the  contrary  is  shown,  together  with  one  as  to  the 
burden  of  proof,  objectionable  as  making  the  presumption  of 
sanity  and  the  burden  of  proving  insanity  too  prominent,3  though 
the  presumption  of  sanity  does  not  absolutely  control  the  jury.* 

So,  the  presumption  of  sanity  applies  to  contracts,  and  the 
competency  and  capacity  of  the  parties  to  a  contract  regularly 

State  v.  Thomas,  1  Houst.  Crim.  Eep.  511;  Beck  v.  State,  76  Ga.  452;  Dan- 
forth  v.  State,  75  Ga.  614,  58  Am.  Rep.  480;  Holsenbake  v.  State,  45  Ga. 
55;  Carr  v.  State,  96  Ga.  284;  People  v.  Walter,  1  Idaho,  386;  Jamison  v. 
People,  145  HI.  357;  Langdon  v.  People,  133  111.  382;  Sanders  v.  State,  94 
Ind.  147;  Guetig  v.  State,  66  Ind.  94,  32  Am.  Rep.  9  J;  Greenley  v.  State, 
60  Ind.  141;  Phelps  v.  Com.  17  Ky.  L.  Rep.  706;  Moore  v.  Com.  92  Ky. 
630;  State  v.  Scott,  49  La.  Ann.  253,  36  L.  R.  A.  721;  State  v.  Lawrence, 
57  Me.  574;  Com.  v.  Heath,  11  Gray,  303;  People  v.  Garbutt,  17  Mich. 
9,  97  Am.  Dec.  162;  Newcomb  v.  State,  37  Miss.  383;  State  v.  Redemeier, 
71  Mo.  173,  36  Am.  Rep.  462;  State  v.  Hundley,  46  Mo.  414;  State  v. 
Klinger,  43  Mo.  127;  State  v.  McCoy,  34  Mo.  536,  86  Am.  Dec.  121;  State 
v.  Martin  (N.  J.)  3  Crim.  L.  Mag.  44;  Graves  v.  State,  45  N.  J.  L.  347, 
46  Am.  Rep.  778;  Brotherton  v.  People,  75  X.  Y.  159;  Walter  v.  People,  32 
X.  Y.  147;  O'ConneU  v.  People,  87  N.  Y.  377,  41  Am.  Rep.  379;  People  v. 
Pine,  2  Barb.  566;  People  v.  O'Connell,  62  How.  Pr.  436;  People  v.  Casey, 
2  N.  Y.  Crim.  Rep.  187;  Walker  v.  People,  1  X.  Y.  Crim.  Rep.  7r  22;  People 
v.  Coleman,  1  X.  Y.  Crim.  Rep.  1;  People  v.  Kir  by,  2  Park.  Crim.  Rep.  28: 
People  v.  Robinson,  1  Park.  Crim.  Rep.  649;  Lake  v.  People,  1  Park. 
Crim.  Rep.  495;  State  v.  Starling,  6  Jones,  L.  366;  State  v.  Kalb,  2  Ohio 
Leg.  News,  364;  Loeffner  v.  State,  10  Ohio  St.  598;  Com.  v.  Woodley,  166 
Pa.  463;  Com.  v.  Werling,  164  Pa.  559;  Coyle  v.  Com.  100  Pa.  573,  45  Am. 
Rep.  397;  Nevling  v.  Com.  98  Pa.  322;  Com.  v.  Farkin,  3  Pa.  L.  J.  480; 
Com.  v.  Sayres,  12  Phila.  553;  Com.  v.  Lynch,  3  Pittsb.  412;  King  v.  State, 
91Tenn.  617;  Carter  v.  State,  12  Tex.  500,  62  Am.  Dec.  539;  Smith  v. 
State,  22  Tex.  App.  316;  Giebel  v.  State,  28  Tex.  App.  151;  Clark  v.  State, 
8  Tex.  App.  350;  Webb  v.  State,  5  Tex.  App.  596;  People  v.  Dillon,  8  Utah, 
92;  United  States  v.  Guiteau,  10  Fed.  Rep.  161;  United  States  v.  McGlue, 
1  Curt.  C.  C.  1;  McNaghten's  Case,  10  Clark  «fe  F.  200. 

1  State  v.  Draper,  1  Houst.  Crim.  Rep.  291. 

2  State  v.  Hartley,  22  Nev.  342,  28  L.  R.  A.  33. 

3  Massengale  v.  State,  24  Tex.  App.  181. 

4  Davis  v.  United  States,  160  U.  S.  469,  40  L.  ed.  499. 


EVIDENCE    OF    INSANITY.  45J_ 

made  are  presumed.'  And  one  who  is  competent  to  contract 
will  be  presumed  to  have  sufficient  mental  capacity  to  marry.' 
And  a  grantor  in  a  deed  is  presumed  to  be  sane  and  competent 
at  the  time  of  its  execution.3  And  evidence,  in  an  action  to  set 
aside  a  deed,  of  the  sanity  of  the  grantor,  is  not  admissible  where 
ho  evidence  as  to  his  insanity  had  been  given.4  So,  when  a 
purchaser  sees  a  regular  chain  of  title,  formal  in  all  its  parts, 
upon  the  registration  books,  executed  by  grantors  of  full  age,  he 
has  a  right  to  rely  upon  the  presumption  of  sanity,  and  will 
be  protected  if  he  purchases  without  notice  for  a  fair  consider- 
ation.5 

Old  age  or  physical  infirmity  raises  no  presumption  of  incapac- 
ity to  make  a  deed  or  contract." 

So,  a  person  making  a  will  is  presumed  to  have  been  possessed 
of  a  sound  and  disposing  mind  at  the  time.7     And  a  sane  testator 

1  Killian  v.  Badgett,  27  Ark.  166;  State  v.  Geddis,  42  Iowa,  268;  Fay  v. 
Burditt,  81  Ind.  433,  42  Am.  Bep.  142;  Dorchester  v.  Dorchester,  3  N.  Y. 
Supp.  238,  Beversed  on  other  grounds,  121  ST.  Y.  156. 

2  Powell  v.  Powell,  27  Miss.  783. 

4  Killian  v.  Badgett,  27  Ark.  166;  Doe,  Guest,  v.  Beeson,  2  Houst.  (Del.) 
246;  English  v.  Porter,  109  111.  285;  Titcomb  v.  Vantyle,  84  HI.  371; 
Dearmond  v.  Dearmond,  12  Ind.  455;  Achey  v.  Stephens,  8  Ind.  411; 
Buckey  v.  Buckey,  38  W.  Va.  168;  Jarrett  v.  Jarrett,  11  W.  Va.  584;  An- 
derson v.  Cranmer,  11  W.  Va.  562;  Hoge  v.  Fisher,  1  Pet.  C.  C.  163.' 

3  Dearmond  v.  Dearmond,  12  Ind.  455. 

6  Odom  v.  Biddick,  104  N.  C.  515,  7  L.  E.  A.  118. 

6  Williams  v.  Haid,  118  N.  C.  481;  Cowee  v.  Cornell,  75  N.  Y.  91,  31  Am. 
Kep.  428;  Lewis  v.  Pead,  1  Ves.  Jr.  19. 

1  O'DonueUv.  Bodiger,  76  Ala.  222,  52  Am.  Bep.  322;  Panaud  v.  Jones,  1 
Cal.  488;  Bell  v.  Buckmaster,  1  Harr.  (Del.)  460,  note;  Jamison  v.  Jamison, 
3  Houst.  (Del.)  108;  Cordrey  v.  Cordrey,  1  Houst.  (Del.)  269;    Holloway  v.' 
Galloway,  51  HI.  159;   Wilber  v.  Wilber,  129  HI.  392;   Herbert  v.  Berrier, 
81  Ind.  1;   Brown  v.  Ward,  53  Md.  393,  36  Am.  Bep.  422;  Higgins  v.  Carl- 
ton, 28  Md.  115,  92  Am.  Dec.  666;   Payne  v.  Banks,  32  Miss.  292;  Jackson 
v.  Hardin,  83  Mo.  175;   Pettes  v.  Bingham,  10  N.  H.  515;   Smith  v.  Smith 
48  N.  J.  Eq.  566;   McCoon  v.  Allen,  45  N.  J.  Eq.  708;  Elkinton  v.  Brick' 
44  N.  J.  Eq.  154,  1  L.  B.  A.  161;  Boylan  v.  Meeker,  28  N.  J.  L.  274;  Den,' 
Trumbull,  v.  Gibbons,  22  N.  J.  L.  117;  Turner  v.  Cheesman,  15  N.  J.  Eq.' 
243;  Whitenack  v.  Stryker,  2  N.  J.  Eq.  8;  Jackson  v.  Van  Duzen,  5  Johns.' 
144,  4  Am.  Dec.  330;  Jones  v.  Jones,  43  N.  Y.  S.  B.  434;  Delatield  v.  Par- 
ish, 25  N.  Y.  9;   Potter  v.  McAlpine,  3  Dem.  108;   Newhard  v.  Yundt,  132 
Pa.  324;  Egbert  v.  Egbert,  78  Pa.  326;   Thompson  v.  Kyner,  65  Pa.  368- 
Werstler  v.  Custer,  46  Pa.  502;  Grabill  v.  Barr,  5  Pa.  441,  47  Am.  Dec.  418- 


452  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

is  presumed  to  be  sane  when  subsequent  alterations  are  made.1 
But  a  refusal  to  instruct  in  a  will  contest  that  everyone  is  pre- 
sumed to  be  sane  until  the  contrary  is  proved  is  not  error  where 
the  jury  were  told  that  they  should  find  for  the  will  on  the  ques- 
tion of  testamentary  capacity,  unless  it  was  shown  that  the  testa- 
tor was  so  unsound  of  mind  at  the  time  as  to  be  incapable  of 
managing  his  affairs.2  The  presumption  is  not  usually  so  strong, 
however,  as  in  case  of  deeds  and  contracts,3  though  it  extends 
through  life  no  matter  to  what  age  the  testator  lives.4  So,  every- 
one is  presumed  to  have  capacity  to  contract  marriage.5  And 
sanity  is  presumed  on  an  application  for  a  discharge  from  an  asy- 
lum on  habeas  corpus.6  But  a  bargain  between  a  lunatic  or  per- 
son of  unsound  mind  and  another  standing  in  a  fiduciary  or  con- 
fidential relation  with  him  is  presumed  to  be  against  justice,  and 
necessitates  proof  of  knowledge  and  fairness.7  The  presumption 
of  sanity  is  not  one  of  law,  but  of  fact,  or  at  least  a  mixed  pre- 
sumption of  law  and  fact.8 

No  presumption  of  incompetency  to  make  a  valid  will  or  gift 
arises  from  the  mere  fact  of  advanced  age  and  increasing  physical 
disease  which  had  weakened  the  donor's  mind,  and  which  within 
three  months  afterwards  resulted  in  his  death.9  Nor  does  any 
presumption  of  insanity  arise  from  a  disposition  different  from 
what  a  jury  would  make,  or  from  what  the  law  would  make  in 
case  of  intestacy.10 

Landis  v.  Laudis,  1  Grant,  Cas.  (Pa.)  248;  Heister  v.  Lynch,  1  Yates,  108; 
Philadelphia  Trust  &  S.  D.  Co.  v.  Drinkhouse,  17  Phila.  23;  Ee  Taylor's 
Estate,  16  Phila.  274;  Keating's  Appeal,  19  Pittsb.  L.  J.  N.  S.  282;  Lee  v. 
Lee,  4  McCord,  L.  183,',17  Am.  Dec.  722;  Kinlock  v.  Palmer,  1  Mill.  Const. 
216;  Denny  v.  Pinney,  60  Vt.  524;  Dean  v.  Dean,  27  Vt.  746;  Burton  v. 
Scott,  3  Band.  399;  Be  Cole's  Will,  49  Wis.  179;  Brown  v.  Bruce,  19  U. 
C.  Q.  B.  35.     And  see  Sutton  v.  Sadler,  3  Jur.  N.  S.  1150. 

1  Hawkins  v.  Grimes,  13  B.  Mon.  257. 

2  Elliott  v.  Walby,  13  Mo.  App.  19. 

3  Beaubien  v.  Cicotte,  8  Mich.  9.     And  see  Turner  v.  Turner,  1  Litt.  102. 

4  Higgins  v.  Carlton,  28  Md.  115,  92  Am.  Dec.  666. 
6  Harrod  v.  Harrod,  1  Kay  &  J.  4,  18  Jur.  853. 

e  Com.,  Helmbold,  v.  Kirkbride,  11  Phila.  427. 

1  Jacox  v.  Jacox,  40  Mich.  473,  29  Am.  Bep.  547;  Hay  dock  v.  Hay  dock, 
34  N.  J.  Eq.  570. 

8  Sutton  v.  Sadler,  3  C.  B.  N.  S.  87. 

9  Williams  v.  Haid,  118  N.  C.  481;  Be  Wheeler,  5  Misc.  279. 

10  Henry  v.  Hall,  106  Ala.  84. 


EVIDENCE    OF    INSANITY. 


453 


§  2.  Burden  of  proof  of  insanity — generally. 

The  general  rule  is  laid  down,  in  accord  with  the  presumption 
that  all  persons  are  sane,  that  the  burden  of  proof  rests  with 
him  who  alleges  insanity  or  unsoundness  of  mind  to  establish  it.1 
One  who  seeks  to  avoid  the  consequences  of  his  conduct,  and 
charge  another  with  liability  for  a  result  to  which  such  conduct 
contributed,  is  bound  to  show  that  he  was  not  responsible  for  his 
own  acts,  and  that  such  person  was  under  duty  of  dealing  with 
him  as  one  incompetent  to  care  for  himself.2  Thus,  the  burden 
of  proof  in  an  action  to  avoid  a  contract  upon  the  ground  of  want 
of  understanding  of  the  nature  and  consequences  of  the  act  upon 
the  part  of  the  party  rests  with  the  person  alleging  it.3  And  the 
same  rule  applies  to  proof  of  incapacity  to  give  a  release,4  01 
make  an  assignment.5  And  the  rule  is  the  same  whether  the 
insanity  was  general  or  partial,6  or  temporary.7 

So,  the  burden  of  showing  incompetency  to  make  a  deed  de 
volves  upon  the  party  objecting  to  its  validity,8  unless  a  previous 

'  Frazer  v.  Frazer,  2  Del.  Ch.  260;  Argo  v.  Coffin,  142  HI.  368;  Men- 
kins  v.  Lightner,  18  HI.  282;  Guild  v.  Hull,  127  111.  523;  Eicketts  v.  Jol- 
liff,  62  Miss.  440;  Jackson  v.  King,  4  Cow.  207,  15  Am.  Dec.  354;  Delafield 
v.  Parish,  25  N.  Y.  9;  Jackson  v.  Van  Dusen,  5  Johns.  144,  4  Am.  Dec. 
330;  Ean  v.  Snyder,  46  Barb.  230;  Cincinnati  Street  E.  Co.  v.  Wright,  54 
Ohio  St.  181,  32  L.  E.  A.  340;  Com.,  Haskell,  v.  Haskell,  2  Brewst.  491; 
Pennypacker  v.  Pennypacker  (Pa.)  7  Cent.  Eep.  532;  Burton  v.  Scott,  3 
Eand.  399;  Hall  v.  Unger,  2  Abb.  U.  S.  507;  Attorney  General  v.  Parn- 
ther,  3  Bro.  Ch.  441.     And  see  Smith  v.  McClure,  146  Ind.  123. 

2  Worthington  v.  Mencer,  96  Ala.  310,  17  L.  E.  A.  407;  Eeeve  v.  Bon- 
will,  5  Del.  Ch.  1. 

3  White  v.  Farley,  81  Ala.  563;  Fay  v.  Burditt,  81  Ind.  433,  42  Am.  Eep. 
142;  State  v.  Geddis,  42  Iowa,  268;  Day  v.  Seeley,  17  Vt.  542;  Hiett  v. 
Shull,  36  W.  Va.  563;  Menkius  v.  Lightner,  18  HI.  282. 

4  Swayze  v.  Swayze,  37  N.  J.  Eq.  180;  Chicago  W.  D.  E.  Co.  v.  Mills, 
91  111.  39. 

5  Dorchester  v.  Dorchester,  3  N.  Y.  Supp.  238,  reversed  on  other 
grounds,  121  N.  Y.  156. 

6  Wray  v.  Wray,  32  Ind.  126. 

'  Chicago  W.  D.  E.  Co.  v.  Mills,  91  111.  39. 

8  Doe,  Guest,  v.  Beeson,  2  Houst.  (Del.)  246;  Chancellor  v.  Donnell,  95 
Ala.  342;  Dicken  v.  Johuson,  7  Ga.  484;  Guild  v.  Warne,  149  111.  105; 
Kimball  v.  Cuddy,  117  111.  213;  English  v.  Porter,  109  111.  285;  Titcomb 
v.  Vantyle,  84  HI.  371;  Achey  v.  Stephens,  8  Ind.  411;  Howe  v.  Howe,  99 


454  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

condition  of  insanity  has  been  established.1  Tims,  the  burden  of 
proving  the  insanity  of  a  person  since  deceased,  for  the  purpose 
of  vacating  a  deed  made  by  him,  rests  with  his  heirs  who  attack 
it.2  And  insanity  must  be  established  by  the  conservator  of  an 
insane  person  who  brings  an  action  to  set  aside  a  conveyance 
made  by  his  ward.3  And  the  burden  of  proof  of  incompetency 
of  a  mortgagor  rests  with  the  party  bringing  an  action  to  set  the 
mortgage  aside  on  that  ground.4  So,  an  instruction  in  an  action 
to  set  aside  a  deed,  in  effect  that  if  the  mortgagor  was  a  person  of 
weak  mind  it  would  be  sufficient  to  avoid  it  unless  the  defendant 
could  show  that  notwithstanding  such  weakness  he  had  sufficient 
capacity  to  understand  the  nature  of  the  contract,  is  erroneous  as 
changing  the  burden  of  proof."  But  one  that  if  the  grantor  had 
sufficient  capacity  to  clearly  comprehend  the  nature  of  the  busi- 
ness, and  that  he  consented  of  his  own  volition,  they  must  find 
for  the  plaintiff,  is  not  subject  to  objection  as  misleading  into 
the  belief  that  the  burden  of  proof  was  on  the  defendant,  where 
it  appears  that  the  grantor  was  insane  shortly  before  the  execu- 
tion of  the  deed.6  So,  one  who  deals  with  a  man  known  to  be  of 
weak  intellect  has  the  burden  of  proof  to  show  that  no  undue 
advantage  was  taken,  and  that  the  dealings  were  had  deliberately 
and  with  knowledge  of  all  the  circumstances  connected  witli 
them.7  And  the  burden  rests  with  a  grantee  taking  a  conveyance 
from  a  person  of  unsound  mind  to  show  that  he  accepted  it  in 
ignorance  of  such  unsoundness.8 

Mass.  88;  Gibbons  v.  Dunn,  46  Mich.  146;  Brown  v.  Brown,  39  Mich,  792; 
Ballew  v.  Clark,  2  Ired.  L.  23;  Cropp  v.  Cropp,  88  Va.  753;  Jarrett  v. 
Jarrett,  11  W.  Va.  584;  Anderson  v.  Cranmer,  11  W.  Va.  562;  Hoge  v. 
Fisher,  1  Pet.  C.  C.  163;  Greenslade  v.  Dare,  20  Beav.  284. 

1  Buckey  v.  Buckey,  38  W.  Va.  168.  And  see  Cropp  v.  Cropp,  88  Va. 
753. 

2  Pike  v.  Pike,  104  Ala.  642. 

3  Piekerell  v.  Morss,  97  111.  220. 

4  Gates  v.  Cornett,  72  Mich.  435. 

6  Sorners  v.  Pumphrey,  24  Ind.  231. 

6  Fishburne  v.  Ferguson,  84  Va.  87. 

'  Gates  v.  Cornett,  72  Mich.  435;  Van  Pelt  v.  Van  Pelt,  30  Barb.  134; 
Clark  v.  Malpas,  31  Beav.  80;  Lin  v.  Lindbardt,  127  Mo.  271.  And  see 
Weir  v.  Fitzgerald,  2  Bradf.  42;   Mowry  v.  Silber,  2  Bradf.  133. 

«  Hull  v.  Louth,  109  Ind.  315,  58  Am.  Eep.  405. 


EVIDENCE    OF    INSANITY.  455 

So,  the  burden  of  proof  iti  an  action  to  set  aside  a  gift  upon  the 
ground  of  mental  weakness  of  a  donor  rests  with  the  complainant.1 
And  the  burden  of  showing  that  a  party  to  a  marriage  contract 
was  incapable  of  understanding  its  nature  at  the  time,  and  what 
she  was  doing,  rests  with  the  party  impeaching  its  validity.2  But 
one  claiming  the  validity  of  a  marriage  entered  into  by  one  who 
had  been  adjudged  a  lunatic  has  the  burden  of  proof  of  a  lucid 
interval  or  of  ratification.3  The  burden  of  proof  of  capacity  rests 
with  an  insurance  company  issuing  a  policy  conditioning  for 
cancelation  upon  a  return  of  the  premiums;1  or  that  it  shall  be 
void  5  in  case  of  death  by  his  own  hand.  The  general  rule  with 
reference  to  burden  of  proof  of  insanity  is  not  universally  applied 
in  criminal  prosecutions  and  proceedings  with  reference  to  wills, 
and  these  have  been  made  the  subject  of  separate  sections.6 

§  3.  JBurden  of  proof  in  criminal  cases. 
A  great  majority  of  the  cases  hold  that  the  plea  of  insanity  in 
a  criminal  prosecution  is  an  affirmative  defense,  and  that  it  de- 
volves upon  the  accused  to  prove  that  he  was  insane  and  incapa- 
ble of  rational  action  to  such  an  extent  as  to  render  him  irrespon- 
sible at  the  time,7  or  that  he  had  not  moral  power  to  resist  the 

* 

1  Kimball  v.  Cuddy,  117  111.  213. 

2  Cannon  v.  Smalley,  L.  E.  10  Prob.  Div.  96;  Harrod  v.  Harrod,  1  Kay 
&  J.  4,  18  Jur.  853;  Browning  v.  Keane,  2  Phillim.  EacL  Kep.  69. 

3  Goodheart  v.  Eansley,  28  Ohio  L.  J.  227. 

4  Stormont  v.  Waterloo  L.  &  Casualty  Assur.  Co.  1  Fost.  &  F.  22. 
6Schultz  v.  Insurance  Co.  40  Ohio  St.  217,  48  Am.  Eep.  676. 

6  See  infra,  sections  3  and  4. 

'Casat  v.  State,  40  Ark.  511;  Boiling  v.  State,  54  Ark.  588;  McKenzie  v. 
State,  26  Ark.  334;  People  v.  Ward,  105  Cal.  335;  People  v.  Schmitt,  106 
Cal.  48;  People  v.  Bemmerly,  98  Cal.  299;  People  v.  McNulty,  93  Cal.  427; 
People  v.  Bawden,  90  Cal.  195;  People  v.  Travers,  88  Cal.  233;  People  v. 
Myers,  20  Cal.  518;  People  v.  Bell,  49  Cal.  485;  People  v.  McDonell,  47 
Cal.  137;  People  v.  McCarthy,  115  Cal.  255;  State  v.  Hoyt,  47  Conn.  518, 
36  Am.  Eep.  89;  State  v.  Hoyt,  46  Conn.  330;  State  v.  Eeidell,  9  Houst 
(Del.)  470;  State  v.  Harrigan,  9  Houst.  (Del.)  369;  State  v.  Pratt,  1  Houst 
Crim.  Eep.  249;  State  v.  Danby,  1  Houst.  Crim.  Eep.  166;  State  v.  Thomas, 
1  Houst.  Crim.  Eep.  511;  Carr  v.  State,  96  Ga.  284;  Humphreys  v.  State, 
45  Ga.  190;  Beck  v.  State,  76  Ga.  452;  Danforth  v.  State,  75  Ga.  614,  58 
Am.  Eep.  480;  People  v.  Walter,  1  Idaho,  386;  Sanders  v.  State,  94  Iud. 
147;  State  v.  Jones,  64  Iowa,  356;  Phelps  v.  Com.  17  Ky.  L.  Eep.  707; 
Moore  v.  Com.  92  Ky.  630;  State  v.  Clements,  47  La.  Ana.  108S ;  State  v. 


456  MEDICAL   JURISFKODENCE    OF    INSANITY. 

impulse  to  commit  the  crime,1  unless  such  incapacity  appears  from 
the  evidence  offered  by  the  prosecution.2  And  where  the  accused 
offers  no  testimony  tending  to  show  insanity,  the  presumption  in 
favor  of  sanity  remains  unrebutted,3  and  the  penalty  of  the  law 
must  be  adjudged  against  him.4     So,  the  burden  rests  with  the 

De  Bance",  34  La.  Ann.  186,  44  Am.  Eep.  426;  State  v.  Scott,  49  La.  Ann. 
253,  36  L.  B.  A.  721;  State  v.  Lawrence,  57  Me.  574;  Com.  v.  Eddy,  7 
Gray,  583;  State  v.  Brown,  12  Minn.  538;  Bonfanti  v.  State,  2  Minn.  123; 
State  v.  Duestrow  (Mo.)  38  S.  W.  554;  State  v.  Schaefer,  116  Mo.  96; 
State  v.  Eagels,  92  Mo.  300;  State  v.  Bell,  136  Mo.  120;  State  v.  Lewis, 
136  Mo.  84;  State  v.  Johnson,  91  Mo.  439;  State  v.  Eedemeier,  71  Mo.  173, 
36  Am.  Eep.  462;  State  v.  Smith,  53  Mo.  267;  State  v.  Hundley,  46  Mo. 
414;  State  v.  Klinger,  43  Mo.  127;  State  v.  McCoy,  34  Mo.  536,  86  Am. 
Dec.  121;  State  v.  Lewis,  20  Nev.  333;  State  v.  Martin  (N.  J.)  3  Crim.  L. 
Mag.  44;  Graves  v.  State,  45  N.  J.  L.  347,  46  Am.  Eep.  778;  Faulkner  v. 
Territory,  6  New  Mex.  464;  Brotherton  v.  People,  75  N.  T.  159;  Walter  v. 
People,  32  N.  Y.  147;  People  v.  Pine,  2  Barb.  566;  People  v.  O'ConneU,  62 
How.  Pr.  436;  People  v.  Casey,  2  N.  Y.  Crim.  Eep.  187;  Walker  v.  People, 
1  N.  T.  Crim.  Eep.  7;  People  v.  Coleman,  1  N.  Y.  Crim.  Eep.  1;  People  v. 
Eobinson,  1  Park.  Crim.  Eep.  649,  Affirmed  2  Park.  Crim.  Eep.  235;  Lake 
v.  People,  1  Park.  Crim.  Eep.  495;  State  v.  Norwood,  115  N.  C.  791;  State 
v.  Starling,  6  Jones,  L.  366;  State  v.  Payne,  86  N.  C.  609;  State  v.  Leuth,  5 
Ohio  C.  C.  94;  Bergin  v.  State,  31  Ohio  St.  Ill;  Silvus  v.  State,  22  Ohio  St.  90; 
Loeffner  v.  State,  10  Ohio  St.  598;  State  v.  O'Grady,  3  Ohio  Leg.  News, 
137;  Cottell  v.  State,  12  Ohio  C.  C.  467;  Kelch  v.  State,  55  Ohio  St.  146; 
Com.  v.  Bezek,  168  Pa.  603;  Com.  v.  Werling,  164  Pa.  559;  Coyle  v.  Com. 
100  Pa.  573,  45  Am.  Eep.  397;  Nevling  v.  Com.  98  Pa.  323;  Sayres  v.  Com. 
88  Pa.  291;  Com.  v.  Parkin,  3  Pa.  L.  J.  480;  Com.  v.  Winnemore,  1  Brewst. 
356;  Com.  v.  Moss,  6  Kulp,  31;  Com.  v.  Sayres,  12  Phila.  553;  Com.  v. 
Lynch,  3  Pittsb.  412;  Hall  v.  Com.  22  W.  N.  C.  25;  State  v.  Mcintosh,  39 
S.  C.  97;  State  v.  Coleman,  20  S.  C.  441;  King  v.  State,  91  Term.  617; 
Dove  v.  State,  3  Heisk.  348;  Leache  v.  State,  22  Tex.  App.  279,  58  Am. 
Eep.  638;  Mendiola  v.  State,  18  Tex.  App.  462;  King  v.  State,  9  Tex.  App. 
515;  People  v.  Dillon,  8  Utah,  92;  People  v.  Calton,  5  Utah,  451;  Bacci- 
galupo  v.  Com.  33  Gratt.  807,  36  Am.  Eep.  795;  Davis  v.  United  States, 
160  U.  S.  469,  40  L.  ed.  499;  Guiteau's  Case,  10  Fed.  Eep.  161;  United 
States  v.  Lancaster,  7  Biss.  440;  United  States  v.  Lawrence,  4  Cranch,  C. 
C.  514;  Eeg.  v.  Layton,  4  Cox,  C.  O.  149;  Eeg.  v.  Stokes,  3  Car.  &  K.  185; 
Eeg.  v.  Townley,  3  Fost.  &  F.  839;  Einlock's  Case,  25  How.  St.  Tr.  981,  997. 

1  Brown  v.  Com.  78  Pa.  122. 

*  State  v.  Danby,  1  Houst.  Crim.  Eep.  166;  People  v.  Calton,  5  Utah,  451. 

s  State  v.  Norwood,  115  N.  C.  791;  Lake  v.  People,  1  Park.  Crim.  Eep. 
495;  Nevling  v.  Com.  98  Pa,  323;  United  States  v.  Lawrence,  4  Cranch,  C. 
C.  514;   McDougal  v.  State  (Ind.)  4  Crim.  L.  Mag.  50). 

4  McKenzie  v.  State,  2o  Ark.  331;  Eeg.  v.  Stokes,  3  Car.  &  K.  185. 


EVIDENCE    OF    INSANITY.  457 

defendant  in  an  appellate  court  on  appeal  from  a  conviction  in  a 
criminal  case  in  which  it  was  found  that  he  was  not  insane  to  show 
that  there  was  sufficient  evidence  in  favor  of  the  defense.1  And 
the  burden  rests  with  the  accused  to  show  his  insanity  upon  an 
inquiry  as  to  his  sanity  at  the  time  he  is  brought  up  to  plead  to 
the  indictment  or,  for  trial.2  And  an  instruction  in  a  criminal 
prosecution  that  everyone  is  presumed  to  be  sane  and  responsible, 
and  that  the  burden  rests  with  the  defendant  to  show  insanity,  is 
not  objectionable  as  making  the  burden  of  proving  insanity  too 
prominent.3 

Upon  the  other  hand,  the  rule  is  laid  down  by  authorities  of 
great  weight  that  the  plea  of  insanity  as  a  defense  in  a  criminal 
prosecution  is  merely  a  denial  of  one  of  the  essential  allegations 
against  the  accused,  and  does  not  cast  the  burden  of  proof  of  its 
existence  upon  him;4  and  that  sanity  is  an  ingredient  in  the 
crime  as  essential  as  the  overt  act,  and  that  the  burden  of  proof 
when  testimony  has  been  given  tending  to  prove  it  rests  with  the 
prosecution  to  show  sanity.6  Under  this  rule,  in  the  absence  of 
evidence  indicating  insanity,  both  the  court  and  the  jury  are  jus- 
tified in  acting  upon  the  presumption  of  sanity,  and  when  the  evi- 
dence establishes  the  criminal  act  and  indicates  nothing  as  to  the 
mental  capacity  of  the  accused,  a  conviction  is  authorized.6  And 
the  state  is  not  required,  in  the  first  instance,  to  introduce  evidence 
to  prove  sanity.7  But  whenever  the  question  of  sanity  is  put  in 
issue  by  facts  coming  from  either  side  which  raise  a  reasonable 

1  Hoard  v.  State,  15  Lea,  318. 

2  State  v.  O'Grady,  3  Ohio  Leg.  News,  137;  United  States  v.  Lancaster,  7 
Biss.  440;  Eeg.  v.  Lurton,  6  Cox,  C.  C.  385. 

3Massengale  v.  State,  24  Tex.  App.  181. 

4  Hopps  v.  People,  31  111.  385,  83  Am.  Dec.  231. 

6  Davis  v.  United  States,  160  U.  S.  469,  40  L.  ed.  499;  Eussell  v.  State, 
53  Miss.  367;  Ford  v.  State,  73  Miss.  734,  35  L.  E.  A.  117;  Ballard  v.  State, 
19  Neb.  610;  Wright  v.  People,  4  Neb.  407;  Moett  v.  People,  85  N.  Y.  373; 
Brotherton  v.  People,  75  N.  Y.  159;  O'Connell  v.  People,  87  N.  Y.  377,  41 
Am.  Eep.  379;  Montag  v.  People,  141  HI.  75;  State  v.  Felter,  32  Iowa.  49; 
Barber's  Appeal,  63  Conn.  393,  22  L.  E.  A.  90. 

"Armstrong  v.  State,  30  Fla.  170,  17  L.  E.  A.  484;  Ford  v.  State,  73 
Miss.  117,  35  L.  E.  A.  117;  O'Connell  v.  People,  87  N.  Y  377,  41  Am.  Eep. 
379;  Brotherton  v.  People,  75  N.  Y  159;  McDougal  v.  State  (Ind.)  4  Crim. 
L.  Mag.  509;  Com.  v.  Eddy,  7  Gray,  583. 

1  State  v.  Crawford,  11  Kan.  32. 


458  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

donbt  of  sanity  it  devolves  upon  the  people  to  establish  it.1 
Though  an  instruction  that  the  defendant  is  presumed  to  be  sane 
until  he  convinces  the  jury  by  the  evidence  that  he  is  insane  is 
not  error  where  he  has  been  tried  upon  the  theory  that  the  bur- 
den rests  with  the  prosecution  to  maintain  his  sanity.2  So,  as  a 
general  rule  the  burden  of  proof  is  regarded  as  remaining  with  the 
government  throughout  the  entire  case,3  the  legal  presumption 
being  regarded  as  merely  a  matter  of  evidence  standing  upon  the 
same  ground  as  the  testimony  of  the  witnesses,  not  shifting  the 
burden  of  proof  in  the  sense  of  changing  the  rule  as  of  the  quan- 
tity of  evidence,  but  being  merely  prima  facie  proof  of  sanity  upon 
which  the  jury  could  find  a  verdict,4  though  it  cannot  be  weighed 
against  any  measurable  amount  of  evidence.5  In  Illinois  and 
Indiana,  however,  it  is  held  that  where  evidence  is  produced  suffi- 
cient to  raise  a  reasonable  doubt  of  the  defendant's  sanity  the  pre- 
sumption of  sanity  ceases,  and  the  burden  shifts  to  the  prosecu- 
tion, which  is  then  required  to  prove  sanity  as  a  necessary  element 
to  constitute  the  crime."  So,  the  defendant  in  a  prosecution  for 
homicide,  who  does  not  deny  the  killing,  but  sets  up  insanity  as  a 
defense,  is  not  thereby  entitled  to  the  opening  and  closing  argu- 
ments, as  the  burden  of  proof  to  establish  a  malicious  intent  still 
remains  with  the  state.7 

'Montag  v.  People,  141  HI.  75;  People  v.  Fisher,  23  HI.  293;  Barber's 
Appeal,  63  Conn.  393,  22  L.  R.  A.  90;  State  v.  Crawford,  11  Kan.  32;  Peo- 
ple v.  Garbutt,  17  Mich.  9,  97  Am.  Dec.  162;  Cunningham  v.  State,  56 
Miss.  269,  31  Am.  Rep.  360;  Furst  v.  State,  31  Neb.  403;  Com.  v.  Heath, 
11  Gray,  303;  O'ConneU  v.  State,  87  N.  Y.  377,  41  Am.  Rep.  379.  And  see 
Lilly  v.  People,  148  HI.  467;  Jamison  v.  People,  145  HI.  357;  State  v.  Mor- 
phy,  33  Iowa,  270,  11  Am.  Rep.  122. 

i  O'ConneU  v.  People,  87  N.  Y.  377,  41  Am.  Rep.  379. 

3  Davis  v.  United  States,  160  U.  S.  469,  40  L.  ed.  499;  Com.  v.  McKie,  1 
Gray,  61,  61  Am.  Dec.  410;  People  v.  Garbutt,  17  Mich.  9,  97  Am.  Dec. 
162;  State  v.  Bartlett,  43  X.  H.  224,  80  Am.  Dec.  154;  McAllister  v.  Terri- 
tory, 1  Wash.  Terr.  360. 

4  State  v.  Bartlett,  43  X.  H.  224,  80  Am.  Dec.  154.  And  see  McAllister 
t.  Territory,  1  Wash.  Terr.  360. 

5  State  t.  Jones,  64  Iowa,  356.  And  see  Barber's  Appeal,  63  Conn.  393, 
22  L.  R.  A.  90. 

6  Jamison  v.  People,  145  HI.  357;  Bradley  v.  State,  3  Ind.  492. 
'  State  v.  Felter,  32  Iowa,  52. 


EVIDENCE    OF    INSANITY.  4:59 

g  4.  Burden  of  proof  in  will  cases. 
The  rule  is  laid  down  by  a  large  number  of  the  cases  that  the 
burden  of  proof  in  a  will  contest,  of  unsoundness  of  mind  or  testa- 
mentary incapacity,  rests  with  those  who  contest  the  will,1  and 
they  have  the  right  to  open  and  close.2  And  the  burden  of  prov- 
ing a  delusion,  aberration,  or  weakness  of  the  mind  rests  with  the 
contestant.3     Within  this  rule  express  proof  of  the  capacity  of  a 

1  O'Donnell  v.  Eodiger,  76  AJa.  222,  52  Am.  Eep.  322;  Cotton  v.  Ulmer, 
45  Ala.  378,  6  Am.  Eep.  703;  Eastis  v.  Montgomery,  95  Ala.  486;  Stubbs  v. 
Houston,  33  Ala.  555;  Murpkree  v.  Senn,  107  Ala.  424;  Knox  v.  Knox,  95 
Ala.  495;  McCulloch  v.  Campbell,  49  Ark.  367;  Clements  v.  McGinn  (Cal.) 
33  Pac.  920;  Panaucl  v.  Jones,  1  Cal.  488;  Jamison  v.  Jamison,  3  Houst. 
(Del.)  108;  Lodge  v.  Lodge,  2  Houst.  (Del.)  419;  Chandler  v.  Ferris,  1 
Harr.  (Del.)  454;  Duffield  v.  Eobeson,  2  Harr.  (Del.)  375;  Bell  v.  Buck- 
master,  1  Harr.  (Del.)  460,  note;  Teegarden  v.  Lewis,  145  Ind.  98;  Blough 
v.  Parry,  144  Ind.  463;  Stephenson  v.  Stephenson,  62  Iowa,  163;  Ee  Coff- 
man's  Will,  12  Iowa,  491;  Taylor  v.  Creswell,  45  Md.  422;  Tyson  v.  Tyson, 
37  Md.  567;  Higgins  v.  Carlton,  28  Md.  115,  92  Am.  Dec.  666;  Brown  v. 
Ward,  53  Md.  393,  36  Am.  Eep.  422;  Baxter  v.  Abbott,  7  Gray,  71;  Brooks 
v.  Barrett,  7  Pick.  94;  Prentis  v.  Bates,  88  Mich.  567;  Mullins  v.  Cottrell, 
41  Miss.  291;  Payne  v.  Banks,  32  Miss.  292;  Pettes  v.  Bingham,  10  N.  H. 
515;  Perkins  v.  Perkins,  39  N.  H.  163;  Elkinton  v.  Brick,  44  N.  J.  Eq. 
154,  1  L.  E.  A.  161;  Turner  v.  Cheesman,  15  N.  J.  Eq.  243;  Sloan  v.  Max- 
well, 3  N.  J.  Eq.  563;  Goble  v.  Grant,  3  N.  J.  Eq.  629;  McCoon  v.  Allen, 
45  N.  J.  Eq.  708;  Whitenack  v.  Stryker,  2  N.  J.  Eq.  8;  Den,  Trumbull,  v. 
Gibbons,  22  N.  J.  L.  117,  51  Am.  Dec.  253;  Brown  v.  Torrey,  24  Barb. 
583;  Legg  v.  Myer,  5  Eedf.  628;  Harper  v.  Harper,  1  Thomp.  £  C.  351; 
Miller  v.  White,  5  Eedf.  320;  Potter  v.  McAlpine,  3  Dem.  108;  Mayo  v. 
Jones,  78  N.  C.  402;  Horah  v.  Knox,  87  N.  C.  490;  Chrisman  v.  Chris- 
man,  16  Or.  127;  Greenwood  v.  Cline,  7  Or.  26;  Grubbs  v.  McDonald,  91 
Pa.  236;  Egbert  v.  Egbert,  78  Pa.  326;  Thompson  v.  Kyner,  65  Pa.  368; 
McMasters  v.  Blair,  29  Pa.  298;  Grabill  v.  Barr,  5  Pa.  441,  47  Am.  Dec. 
418;  Philadelphia  Trust  &  S.  D.  Co.  v.  Drinkhouse,  17  Phila,  23;  Landis 
v.  Landis,  1  Grant,  Pa.  248;  Kinlock  v.  Palmer,  1  Mill,  Const.  215;  Lee  v. 
Lee,  4  McCord,  L.  183,  17  Am.  Dec.  722;  Bartee  v.  Thompson,  8  Baxt. 
508;  Puryear  v.  Eeese,  6  Coldw.  21;  Cox  v.  Cox,  4  Sneed,  87;  Ford  v. 
Ford,  7  Humph.  92;  Gass  v.  Gass,  3  Humph.  278;  Dean  v.  Dean,  27  Vt. 
746;  Burton  v.  Scott,  3  Band.  399;  Allen  v.  Gviffin,  69  Wis.  529;  Ee  Cole's 
Will,  49  Wis.  179;  Cartwright  v.  Cartwright,  1  Phillim.  Eccl.  Eep.  90; 
Dew  v.  Clark,  3  Add.  Eccl.  Eep.  79;  Groom  v.  Thomas,  2  Hagg.  Eccl. 
Eep.  433. 

>:  Chandler  v.  Ferris,  1  Harr.  (Del.)  454;  Bell  v.  Buckmaster,  1  Harr. 
<Del.)  460,  note. 

■■Allen  v.  Public  Administrator,  1  Bradf.  378;  Keeler  v.  Keeler,  20  N.  Y. 
S.  E.  439. 


460  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

testator  is  not  required  in  the  absence  of  a  contest,  as  in  such  case 
the  natural  presumption  of  competency  will  prevail.1  And  where 
a  will  is  contested  on  the  ground  of  insanity  the  proponent  is  only 
required  to  prove  the  fact  of  formal  execution  when  the  burden  of 
overturning  the  presumption  of  sanity  is  cast  upon  the  contestants.2 
Though  it  has  been  held  that  evidence  of  sanity  is  necessary.* 
And  when  competency  is  assailed  it  is  competent  for  the  propo- 
nent to  recall  the  subscribing  witnesses  to  sustain  it.4  Where 
the  attesting  witnesses  do  not  impeach  the  testator's  sanity,  or  if, 
being  absent  or  dead,  their  handwriting  is  proved,  the  will  will 
be  regarded  as  established  unless  proof  of  insanity  is  offered  by 
the  contestants.5 

Upon  the  other  hand,  the  contrary  rule  has  been  repeatedly 
affirmed  by  authorities  of  great  weight,  creating  in  some  instances 
an  irreconcilable  conflict  of  authority  in  the  same  state.  Under 
this  rule  the  sanity  of  a  testator  at  the  time  of  the  execution  of 
his  will  is  regarded  as  an  affirmative  fact  to  be  established  in  a 
proceeding  to  contest  his  will  by  those  affirming  its  validity  ;6  and 

1  Herbert  v.  Berrier,  81  Incl.  1;  Perkins  v.  Perkins,  39  N.  H.  163;  Smith 
v.  Smith,  4  Baxt.  293;  Hawkins  v.  Grimes,  13  B.  Mon.  257. 

■  Titlow  v.  Titlow,  54  Pa.  216,  93  Am.  Dec.  691;  Werstler  v.  Custer,  46 
Pa.  502;  Key  v.  Hollo  way,  7  Baxt.  576;  Frear  v.  Williams,  7  Baxt.  550; 
Smith  v.  Smith,  4  Baxt.  293. 

a  Werstler  v.  Custer,  46  Pa.  502. 

4  Titlow  v.  Titlow,  54  Pa.  216,  93  Am.  Dec.  691. 

6  Perkins  v.  Perkins,  39  N.  H.  163. 

6  Knox's  Appeal,  26  Conn.  20;  Comstock  v.  Hacllyme  Eccl.  Soc.  8  Conn. 
261,  20  Am.  Dec.  100;  Evans  v.  Arnold,  52  Ga.  169;  Potts  v.  House,  6  Ga. 
324,  50  Am.  Dec.  329;  Keithley  v.  Stafford,  126  HI.  507;  Carpenter  v. 
Calvert,  83  HI.  62;  HoUoway  v.  Galloway,  51  HI.  160;  Riggv.  Wilton,  13  HI. 
15,  54  Am.  Dec.  419;  Hawkins  v.  Grimes,  13  B.  Mon.  257;  Cramer  v.  Cram- 
baugh,  3  Md.  491;  Barker  v.  Comins,  110  Mass.  477;  Crowninshield  v.  Crown- 
inshield,  2  Gray,  524;  Phelps  v.  Hartwell,  1  Mass.  71;  HaU  v.  Perry,  87  Me. 
569 :  Robinson  v.  Adams,  62  Me.  369 ;  Gerrish  v.  Nason,  22  Me.  438, 39  Am.  Dec. 
589;  Cilley  v.  Cilley,  34  Me.  162;  Barnes  v.  Barnes,  66  Me.  286;  O'Connor 
v.  Madison,  98  Mich.  183;  Prentis  v.  Bates,  93  Mich.  234,  17  L.  R.  A.  494; 
Aikin  v.  Weckerley,  19  Mich.  482;  Sheehan  v.  Kearney  (Miss.)  21  So.  41, 
35  L.  R.  A.  102;  Tucker  v.  Whitehead,  59  Miss.  594;  Carl  v.  Gabel,  120 
Mo.  283;  Cravens  v.  Faulconer,  28  Mo.  21;  Norton  v.  Paxton,  110  Mo.  456; 
Benoist  v.  Murrin,  58  Mo.  307;  Tingley  v.  Cowgill,  48  Mo.  291;  Jones  v. 
Roberts,  37  Mo.  App.  163;  Elliott  v.  Welby,  13  Mo.  App.  19;  Murry  v. 
Hennessey,  4S  Neb.  608;  Seebrock  v.  Fedawa,  30  Neb.  424;  Hardy  v.  Mer- 


EVIDENCE    OF    INSANITY.  461 

they  are  entitled  to  open  and  conclude  the  argument  before  the 
jury.1  So,  the  presumption  of  sanity  does  not  apply  in  a  will 
contest  where  the  statute  requires  the  testator  to  be  of  sound 
mind  to  make  a  valid  will,  such  soundness  of  mind  being  re- 
quired to  be  proved  by  the  proponent.2  And  the  burden  is  the 
same  where  the  statute  provides  for  proof  of  the  execution  of  the 
will  and  sanity  of  the  testator  by  the  proponent.3  And  the  aver- 
ment on  the  part  of  the  proponents  for  the  purpose  of  forming 
an  issue  should  include  everything  necessary  to  constitute  a  valid 
will,  though  where  the  requirement  of  soundness  rests  upon  im- 
plication only  the  presumption  of  sanity  would  be  sufficient  to 
satisfy  the  implication  without  averment.'  The  burden  of  proof 
resting  with  the  proponent  continues  throughout  the  trial,  and 
does  not  shift  upon  evidence  of  sanity.5     But  where  a  prima 

rill,  56  N.  H.  227,  22  Am.  Eep.  441;  Mountain  v.  Bennett,  1  Cox,  Eq.  356; 
Den  v.  Van  Cleve,  5  N.  J.  L.  589;  Delafield  v.  Parish,  25  N.  Y.  9;  Ee 
Flansburgh's  Will,  82  Hun,  49;  Kingsley  v.  Blanchard,  56  Barb.  317;  Ke 
Forman's  Will,  54  Barb.  274;  Jones  v.  Jones,  43  N.  Y.  S.  B.  434;  Chrisman 
v.  Chrisman,  16  Or.  127;  Vance  v.  Upson,  66  Tex.  476;  Beazley  v.  Den- 
son,  40  Tex.  416;  Benn  v.  Samos,  33  Tex.  760;  Williams  v.  Bobinson,  42 
Vt.  658,  1  Am.  Eep.  359;  Denny  v.  Pinney,  60  Vt.  524;  Bidell  v.  Johnson, 
26  Gratt.  152;  Ee  Silverthorn's  Will,  68  Wis.  372;  McMechen  v.  McMechen, 
17  W.  Va.  683,  41  Am.  Eep.  682;  Banks  v.  Goodfellow,  22  L.  T.  N.  S.  813; 
Smee  v.  Smee,  L.  E.  5  Prob.  Div.  84;  Sutton  v.  Sadler,  3  C.  B.  N.  S.  87; 
Browning  v.  Budd,  6  Moore,  P.  C.  430;  Wallis  v.  Hodgeson,  2  Atk.  56; 
Harris  v.  Ingledew,  3  P.  Wms.  91 ;  Barry  v.  Butlin,  1  Curt,  Eccl.  Eep.  637. 
And  see  Be  Layman's  Will,  40  Minn.  371. 

1  Comstock  v.  Hadlyme  Eccl.  Soc.  8  Conn.  261,  20  Am.  Dec.  100;  Bigg 
v.  Wilton,  13  111.  15,  54  Am.  Dec.  419;  Brooks  v.  Barrett,  7  Pick.  94; 
Phelps  v.  Hartwell,  1  Mass.  71;  Bobinson  v.  Adams,  62  Me.  369,  16  Am. 
Eep.  473. 

2  Bobinson  v.  Adams,  62  Me.  369,  16  Am.  Eep.  473;  Barnes  v.  Barnes, 
66  Me.  286;  Cilley  v.  Cilley,  34  Me.  162;  Gerrish  v.  Nason,  22  Me.  438,  39 
Am.  Dec.  589;  Crowninshield  v.  Crowninshield,  2  Gray,  524;  Beaubien  v. 
Cicotte,  8  Mich.  9;  Martin  v.  Perkins,  56  Miss.  201;  Nicholas  v.  Kershner, 
20  W.  Va.  251;  McMechen  v.  McMechen,  17  W.  Va.  683,  41  Am.  Eep.  682.' 

3  Ee  Layman's  Will,  40  Minn.  371. 

4  Beaubien  v.  Cicotte,  8  Mich.  9.  And  see  Hawkins  v.  Grimes,  13  B. 
Mon.  257. 

5  Crowninshield  v.  Crowninshield,  2  Gray,  524;  Barker  v.  Comius,  110 
Mass.  477;  Norton  v.  Paxton,  110  Mo.  456;  Baxter  v.  Abbott,  7  Gray,  71; 
Sheehan  v.  Kearney  (Miss.)  21  So.  41,  35  L.  B.  A.  102;  Elliott  v.  Welby, 
13  Mo.  App.  19;  Prentis  v.  Bates,  93  Mich.  234,  17  L.  E.  A.  494;  Aikin  v. 


462 


MEDICAL   JURISPKCDENCE    OF    INSANITY. 


facie  case  has  been  established  by  the  proponents  the  case  stands 
the  same  as  if  the  burden  of  proof  throughout  rested  with  the 
contestants,  and  they  are  bound  by  rules  applicable  to  the  party 
having  the  affirmative  as  to  the  order  of  their  proof.1  The  rule  in 
Illinois,  and  perhaps  some  of  the  other  states,  however,  is  that  while 
the  burden  rests  with  the  proponent  to  show  that  the  testator  was 
of  sound  mind,  when  this  is  done  the  burden  shifts  to  the  contest- 
ant, not  only  to  neutralize  the  proof  of  sanity,  but  also  the  presump- 
tion of  sanity.2  So,  the  burden  of  proof  resting  with  the  proponent 
is  usually  regarded  as  requiring  the  production  of  some  evidence 
to  support  it  other  than  the  presumption  of  soundness  of  mind.3 
Sufficient  proof  to  make  out  a  prima  facie  case  of  sanity  is  neces- 
sary to  the  admission  of  a  will  to  probate  as  one  of  the  jurisdic- 
tional facts.4  But  the  contrary  rule  that  mere  proof  of  execution 
is  sufficient  has  been  held.5  And  proof  of  sanity  is  not  indispen- 
sable in  the  absence  of  evidence  of  unsoundness,  as  in  such  case 
the  disposition  made  by  the  will  may  of  itself  afford  sufficient  evi- 
dence of  sanity.6     And  a  prima  facie  case  which  will  satisfy  the 

Weckerly,  19  Mich.  482;  Delafield  v.  Parish,  25  N.  Y.  9;  Chrisman  v. 
Chrisman,  16  Or.  127;  Livingston's  Appeal,  63  Conn.  68;  Sutton  v. 
Sadler,  3  C.  B.  N.  S.  87.     But  see  Illinois  cases  cited  below. 

1  Kempsey  v.  McGinniss,  21  Mich.  123;  Be  Layman's  Will,  40  Minn.  371; 
Jones  v.  Jones,  43  N.  Y.  S.  B.  434;  Sutton  v.  Sadler,  3  C.  B.  N.  S.  87;  Be 
Silverthorn's  Will,  68  Wis.  372.  And  see  Harrison  v.  Bowan,  3  Wash.  C.  C. 
580;  Hodgdon  v.  Crosby,  1  Wash.  Terr.  578;  Carpenter  v.  Carpenter,  Milw. 
159;  Taylor  v.  Creswell,  45  Md.  422;  Tyson  v.  Tyson,  37  Md.  567;  Higgins 
v.  Carlton,  28  Md.  115,  92  Am.  Dec.  666;  Cramer  v.  Crumbaugh,  3  Md. 
491;  Hoge  v.  Fisher,  1  Pet.  C.  C.  163;  Barber's  Appeal,  63  Conn.  393,  22 
L.  B.  A.  90;  Jackson  v.  Hardin,  83  Mo.  175. 

2  Carpenter  v.  Calvert,  83  111.  62;  Wilbur  v.  Wilbur,  129  111.  392;  Pend- 
layv.  Eaton,  130  HI.  69;  Holloway  v.  Galloway,  51  HI.  160.  See  also 
Jackson  v.  Hardin,  83  Mo.  175;  Be  Barber's  Appeal,  63  Conn.  393,  22  L. 
B.  A.  90;  Groom  v.  Thomas,  2  Hagg.  Eccl.  Bep.  433;  Den,  Stevens,  v.Van- 
cleve,  4  Wash.  C.  C.  262;  Higgins  v.  Carlton,  28  Md.  115,  92  Am.  Dec. 
666. 

3  Aikin  v.  Weckerly,  19  Mich.  482;  McGinnis  v.  Kempsey,  27  Mich.  363; 
Martin  v.  Perkins,  56  Miss.  204;  Be  Silverthorn's  Will,  68  Wis.  372.  And 
see  Higgins  v.  Carlton,  28  Md.  115,  92  Am.  Dec.  666;  Hubbard  v.  Hub- 
bard, 7  Or.  42. 

4  Be  Baldwin's  Estate,  13  Wash.  666;  Be  Silverthorn's  Will,  62  Wis.  372. 
6  Gass  v.  Gass,  3  Humph.  278;  Frear  v.  Williams,  7  Bast.  550;  Ford  v. 

Ford,  7  Humph.  92. 

6  Anderson  v.  Irwin.  101  111.  411 ;  Holloway  v.  Galloway,  51  111.  159. 


EVIDENCE    OF    INSANITY.  4(33- 

burden  of  proof  is  made  out  by  proof  of  due  execution  of  a  will 
rational  in  its  provisions  and  consistent  in  its  details,  language,  • 
and  construction,1  and  the  testimony  of  the  subscribing  witnesses 
as  to  capacity  is  sufficient.3  The  burden  of  proof  in  a  will  contest 
rests  with  the  proponent  to  show  general  sanity  or  testamentary 
capacity  only,  however,  and  a  charge  submitting  to  the  jury  the 
question  whether  the  testatrix  was  entirely  free  from  insanity  of 
any  kind  is  improper.3 

So,  the  same  conflict  exists  on  the  question  of  the  burden  of 
proof  in  a  proceeding  to  set  aside  a  will  already  probated.  Thus 
the  rule  is  laid  down  by  some  of  the  cases  that  one  who  seeks  to 
set  aside  a  will  which  has  been  established  in  probate  court,  upon 
an  allegation  of  mental  incapacity,  assumes  the  affirmative  and 
has  the  burden  of  proof  ; 4  and  he  has  the  right  to  open  and  close 
upon  the  trial.6  And  the  effect  of  a  statute  providing  that  the 
order  of  probate  shall  be  prima  facie  evidence  of  the  due  attesta- 
tion, execution,  and  validity  of  the  will  is  to  change  the  burden 
of  proof  in  respect  to  each  of  these  subjects  from  the  propounders 
to  the  contestants  where  it  remains,  leaving  the  weight  of  the  evi- 
dence the  only  question  for  determination.6  But,  on  the  other 
hand,  it  is  held  that  the  burden  of  proof  in  a  proceeding  to  con- 
test a  will  after  its  admission  to  probate  rests  w7ith  those  seeking 
to  maintain  it  to  show  that  at  the  time  of  its  execution  the  testa- 
tor was  of  sound  mind  and  memory.7     And  the  propounder  i&. 

1  Fee  v.  Taylor,  83  Ky.  259;  Milton  v.  Hunter,  13  Bush,  163;  Flood  v, 
Pragoff,  79  Ky.  607;  Symes  v.  Green,  1  Swab.  &  T.  401,  5  Jur.  N.  S.  742. 
And  see  Cole's  Will,  49  Wis.  179. 

-  O'Connor  v.  Madison,  98  Mich.  183;  Taft  v.  Hosiner,  14  Mich.  309. 

3  Wetter  v.  Habersham,  60  Ga.  194. 

4  Jenkins  v.  Tobin,  31  Ark.  306;  Moore  v.  Allen,  5  Ind.  521;  Blougli  v 
Parry,  144  Ind.  463;  Rich  v.  Bowker,  25  Kan.  7;  Copeland  v.  Copeland, 
32  Ala.  512;  Chrisman  v.  Chrisman,  16  Or.  127. 

5  Moore  v.  Allen,  5  Ind.  521. 

B  Mears  v.  Mears,  15  Ohio  St.  90. 

1  Trish  v.  Newell,  62  HI.  196;  Comstock  v.  Hadlyme  Eccl.  Soc.  8  Conn. 
254,  20  Am.  Dec.  100;  Livingston's  Appeal,  63  Conn.  68;  Potts  v.  House, 
6  Ga.  324,  50  Am.  Dec.  329;  Jackson  v.  Hardin,  83  Mo.  175;  Benoist  v. 
Murrin,  58  Mo.  307;  Tingley  v.  Cowgill,  48  Mo.  291;  Cravens  v.  Faulconer, 
28  Mo.  21;  Jones  v.  Roberts,  37  Mo.  App.  163;  Elliott  v.  Welby,  13  Mo.. 
App.  19. 


464  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

entitled  to  open  and  close.1  And  an  instruction  that  the  plaintiff 
in  such  a  proceeding  must  prove  that  the  testator  was  not  of 
sound  mind  and  sufficient  disposing  memory  to  bequeath  his 
property  is  error,  where  the  statute  only  requires  the  contestant 
to  show  that  the  testator  was  of  sound  mind.2  So,  the  burden  of 
proving  the  proper  execution  of  a  will  rests  with  the  defendant 
in  ejectment  claiming  under  it,  and  for  that  purpose  he  must  call 
the  subscribing  witnesses,  making  them  his  own,  to  testify  as  to 
the  fact  of  execution  and  mental  capacity,  leaving  the  plaintiff 
the  benefit  of  cross-examining  them.3  After  the  defendant  has 
put  the  will  in  evidence,  and  made  proof  of  testamentary  capac- 
ity by  the  subscribing  witnesses,  and  the  will  has  been  admitted 
to  probate,  however,  the  burden  of  proof  no  longer  rests  with 
him,  and  it  is  then  the  duty  of  the  jury  to  determine  the  question 
of  testamentary  capacity  from  the  weight  of  all  the  evidence 
introduced.4  The  onus  rests  with  a  party  procuring  the  execu- 
tion of  a  will  to  prove  capacitj7  when  incapacity  is  alleged.6 

II.  Measure  of  proof. 

§  1.   Conflicting  character  of  the  criminal  cases. 

The  cases  in  the  different  states  and  jurisdictions  with  relation 
to  the  measure  or  quantity  of  proof  necessary  to  establish  insanity 
as  a  defense  in  a  criminal  prosecution  are  hopelessly  conflicting; 
they  may  be  said,  however,  to  have  arranged  themselves  in  sev- 
eral groups  each  of  which  has  adopted  a  rule  of  its  own  which 
has  been  stated  and  acted  upon  with  a  reasonable  degree  of  cer- 
tainty. 

§  2.  Beyond  a  reasonable  doubt. 

The  rule  was  laid  down  and  acted  upon  in  some  of  the  earlier 
cases  that  proof  of  insanity  at  the  time  of  the  commission  of  the 

1  Potts  v.  House,  6  Ga.  324;  Corastock  v.  Hadlyine  Eccl.  Soc.  8  Conn. 
254,  20  Am.  Dec.  100. 

■  Kenwortky  v.  Williams.  5  Ind.  375. 

3  Waters  v.  Waters,  35  Md.  531. 

4  Pendlay  v.  Eaton,  130  111.  69;  HoUWay  v.  Galloway,  51  HI.  159;  Eun- 
yan  v.  Price,  15  Ohio  St.  1,  86  Am.  Dec.  459;  Newkard  v.  Yundt,  132  Pa. 
324;  Ee  Cole's  Will,  49  Wis.  179. 

6  Currie  v.  Currie,  24  Can.  S.  C.  712.  And  see  Hegney  v.  Head,  126 
Mo.  619. 


EVIDENCE    OF    INSANITY.  465 

crime,  to  warrant  an  acquittal  on  that  ground,  ought  to  be  as 
clear  and  satisfactory  as  proof  of  committing  the  act  ought  to  be 
in  order  to  find  a  sane  man  guilty.'  And  that  when  relied  upon 
as  a  defense  it  should  be  made  out  to  the  satisfaction  of  the  jury 
beyond  a  reasonable  doubt.3  But  this  doctrine  has  been  over- 
ruled and  repudiated  except  in  a  few  instances.  The  rule  that 
one  who  alleges  insanity  as  an  excuse  for  crime  must  establish  it 
beyond  a  reasonable  doubt,  however,  has  been  retained  in  Louis- 
iana, at  least  until  a  very  recent  date.3  And  in  Oregon  the 
defense  of  insanity  in  a  criminal  prosecution  is  required  to  be 
established  beyond  a  reasonable  doubt  by  statute,4  under  which 
the  finding  of  the  jury  on  the  question  of  insanity  is  conclusive, 
and  cannot  be  disturbed  on  appeal.6 

§  3.  Preponderance  of  proof. 
One  of  the  leading  doctrines  on  this  subject  which  is  supported 
by  a  large  number  of  well-considered  cases,  and  which  has  been 
adopted  by  a  number  of  the  states,  is  that  which  regards  the  plea 
of  insanity  as  a  separate  and  independent  defense.6  Within  this 
doctrine  insanity  need  not  be  established  beyond  a  reasonable 
doubt.7     And  a  mere  doubt  of  sanity  is  not  sufficient  to  warrant 

1  State  v.  Spencer,  21  N.  J.  L.  196. 

2  State  v.  Brinyea,  5  Ala.  241;  State  v.  Newman,  7  Ala.  69;  State  v.  Mar- 
ler,  2  Ala.  43,  36  Am.  Dec.  398;  State  v.  West,  1  Houst.  Crim.  Kep.  371; 
People  v.  McCann,  3  Park.  Crim.  Eep.  272;  Sellick's  Case,  1  City  Hall  Eec. 
185;  State  v.  Murray,  11  Or.  413;  State  v.  Defiance",  34  La.  Ann.  186; 
44  Am.  Eep.  426;  State  v.  Clements,  47  La.  Ann.  1088;  Bellinghani's  Case, 
1  Collinson  on  Lunacy,  636;  Eex  v.  Offorcl,  5  Car.  &  P.  168.  And  see  Cun- 
ningham v.  State,  56  Miss.  272,  31  Am.  Eep.  360. 

3  State  \.  Clements,  47  La.  Ann.  1088;  State  v.  Defiance",  34  La.  Ann. 
186,  44  Am.  Eep.  426;  State  v.  Coleman,  27  La.  Ann.  691.  But  see  State 
v.  Scott,  49  La  Ann.  253,  36  L.  E.  A.  721. 

4  Hill's  Code  (Or.)  §  1358. 

5  State  v.  Hansen,  25  Or.  391. 

6  Com.  v.  Bezek,  168  Pa.  603;   State  v.   Gut,   13  Minn.  543;    State  v. 

Lewis,  20  Nev.  333. 

1  State  v.  Wright,  134  Mo.  404;  State  v.  Duestrow  (Mo.)  38  S.  W.  554; 
State  v.  Klinger,  43  Mo.  127;  State  v.  Johnson,  91  Mo.  439;  State  v.  Hund- 
ley, 46  Mo.  414;  State  v.  Spencer,  21  N.  J.  L.  196;  State  v.  Potts,  100  N. 
C.  457;  Loeffher  v.  State,  10  Ohio  St.  598;  Com.  v.  Werling,  164  Pa.  559; 
Pannell  v.  Com.  86  Pa.  260;  Meyers  v.  Com.  83  Pa.  141;  Boswell  v.  Com. 
20  Gratt.  860;  State  v.  Eobinson,  20  W.  Va.  713,  43  Am.  Bep.  799. 
30 


±6Q 


MEDICAL    JURISPRUDENCE    OF    INSANITY. 


an  acquittal ; J  the  measure  of  proof  required  to  establish  insanity 
being  variously  stated  as  a  fair  preponderance  of  the  evidence,2  or 
such  as  reasonably  satisfies  the  jury,3  or  a  clear  preponderance  of 

1  Lynch  v.  Com.  77  Pa.  205;  Ortwein  v.  Com.  76  Pa,  414,  18  Am.  Eep. 
420. 

2  Gunter  v.  State,  80  Ala.  96;  Ford  v.  State,  71  Ala.  385;  BosweU  v. 
State,  63  Ala.  307,  35  Am.  Eep.  20;  Parsons  v.  State,  81  Ala.  577,  60  Am. 
Rep.  193;  Maxwell  v.  State,  89  Ala.  150;  Boswell  v.  State,  63  Ala.  326; 
Williams  v.  State,  50  Ark.  517;  Coates  v.  State,  50  Ark.  330;  Casat  v.  State, 
40  Ark.  511;  McKenzie  v.  State,  26  Ark.  334;  People  v.  Bawden,  90  Cal. 
195;  People  v.  Bemmerly,  98  Cal.  299;  People  v.  Ward,  105  Cal.  335; 
People  v.  Messersmith,  57  Cal.  575;  People  v.  Coffman,  24  Cal.  233;  Peo- 
ple v.  McDoneU,  47  Cal.  134;  People  v.  Myers,  20  Cal.  518;  People  v. 
Wilson,  49  Cal.  13;  People  v.  Bell,  49  Cal.  485;  People  v.  Wreden,  59  CaL 
392,  12  Eep.  682;  People  v.  McNulty,  93  Cal.  427;  People  v.  Travers,  88 
Cal.  233;  State  v.  Hoyt,  46  Conn.  330,  47  Conn.  518;  Carr  v.  State,  96  Ga, 
284;  Carter  v.  State,  56  Ga.  463;  Danforth  v.  State,  75  Ga.  614;  State  v. 
Trout,  74  Iowa,  545;  State  v.  Geddis,  42  Iowa,  268;  State  v.  Bruce,  48 
Iowa,  530,  30  Am.  Eep.  403;  State  v.  Felter,  32  Iowa,  53;  State  v.  Jones, 
64  Iowa,  356;  Ball  v.  Com.  (Ky.)  18  Cent.  L.  J.  438,  16  Chic.  Leg.  N.  289; 
Phelps  v.  Com.  17  Ky.  L.  Eep.  706;  Moore  v.  Com.  92  Ky.  630;  Kriel  v. 
Com.  5  Bush,  363;  State  v.  Lawrence,  57  Me.  574;  Com.  v.  Eogers,  7  Met. 
500,  41  Am.  Dec.  458;  Com.  v.  Eddy,  7  Gray,  583;  People  v.  Garbutt,  17 
Mich.  9,  97  Am.  Dec.  162;  State  v.  Williamson,  106  Mo.  162;  State  v. 
McCoy,  34  Mo.  531,  86  Am.  Dec.  121;  State  v.  Hundley,  46  Mo.  414;  State  v. 
Klinger,  43  Mo.  127;  State  v.  Lewis,  20  Nev.  333;  State  v.  Martin  (N.  J.)  3 
Crim.  L.  Mag.  44;  Graves  v.  State,  45  K  J.  L.  347,  46  Am.  Eep.  778;  State  v. 
O'Grady,  3  Ohio  Leg.  News,  137;  Farrer  v.  State,  2  Ohio  St.  54;  Silvus  v. 
State,  22  Ohio  St.  90;  Bond  v.  State,  23  Ohio  St.  349;  Loeffner  v.  State, 
10  Ohio  St.  599;  Cottell  v.  State,  12  Ohio  C.  C.  467;  Com.  v.  Bezek,  168 
Pa.  603;  Com.  v.  Woodley,  166  Pa.  463;  Com.  v.  Werling,  164  Pa.  559; 
Coyle  v.  Com.  100  Pa.  573,  45  Am.  Eep.  397;  Sayres  v.  Com.  88  Pa.  291; 
Pannell  v.  Com.  86  Pa.  260;  Meyers  v.  Com.  83  Pa.  141;  Brown  v.  Com. 
78  Pa.  122;  State  v.  Mcintosh,  39  S.  C.  97;  State  v.  Bundy,  24  S.  C.  439, 
58  Am.  Eep.  263;  State  v.  Paulk,  18  S.  C.  514;  State  v.  Alexander,  30  S. 
C.  74;  Hoard  v.  State,  15  Lea,  318;  Lovegrove  v.  State,  31  Tex.  Crim.  Eep. 
491;  Newberry  v.  State,  32  Tex.  Crim.  Eep.  145;  Boren  v.  State,  32  Tex. 
Crim.  Eep.  637;  Smith  V.  State,  19  Tex.  App.  95;  Leache  v.  State,  22  Tex. 
App.  279,  58  Am.  Eep.  638;  People  v.  Dillon,  8  Utah,  92. 

3  People  v.  McDonell,  47  Cal.  131;  People  v.  Coffnian,  24  Cal.  230; 
State  v.  Harrigan,  9  Houst.  (Del.)  369;  State  v.  Pratt,  1  Houst.  Crim.  Eep. 
249;  State  v.  Danby,  1  Houst.  Crim.  Eep.  166;  People  v.  Walters,  1  Idaho, 
386;  State  v.  Hockett,  70  Iowa,  442;  State  v.  Bruce,  48  Iowa,  530,  30  Am. 
Eep.  403;  State  v.  Geddis,  42  Iowa,  268;  Graham  v.  Com.  16  B.  Mon.  587; 
Kriel  v.  Com.  5  Bush,  362;   Moore  v.  Com.  92  Ky.  630;   Kaelin  v.  Com.  84 


EVIDENCE    OF    INSANITY.  467 

proof,'  or  such  as  rationally  convinces  the  jury,2  or  that  it  must 
be  established  to  a  reasonable  certainty,3  or  that  it  must  be  made 
plainly  to  appear,4  or  that  it  must  be  clearly  proved  or  estab- 
lished.5 These  different  methods  of  stating  the  rule  would  seem 
to  have  been  used  interchangeably  and  as  meaning  practically  the 
same  thing,  except,  perhaps,  with  reference  to  the  one  requiring 
insanity  to  be  clearly  established.     Thus,  it  has  been  held  that 

Ky.  354;  State  v.  Scott,  49  La.  Ann.  253,  36  L.  E.  A.  721;  Com.  v.  Eogers, 
7  Met.  500,  41  Am.  Dec.  458;  Com.  v.  Heath,  11  Gray,  303;  State  v.  Han- 
ley,  34  Minn.  430;  State  v.  Gut,  13  Minn.  343;  State  v.  Duestrow  (Mo.)  38 
S.  W.  554;  State  v.  Wright,  134  Mo.  404;  State  v.  Schaefer,  116  Mo.  96; 
State  v.  Eedemeier,  71  Mo.  173,  36  Am.  Eep.  462;  State  v.  Pagels,  92  Mo. 
300;  State  v.  Smith,  53  Mo.  267;  State  v.  Hundley,  46  Mo.  414;  State  v. 
Huting,  21  Mo.  464;  Baldwin  v.  State,  12  Mo.  227;  People  v.  Pine,  2  Barb. 
566;  State  v.  Bartlett,  43  N.  H.  224,  80  Am.  Eep.  154;  State  v.  Davis,  109 
N.  C.  780,  14  L.  E.  A.  206;  State  v.  Payne,  86  N.  C.  609;  State  v.  Potts, 
100  N.  C.  457;  State  v.  Vann,  82  N.  C.  631;  State  v.  Starling,  6  Jones,  L. 
366;  Loeffner  v.  State,  10  Ohio  St.  598;  Bond  v.  State,  23  Ohio  St.  349; 
Com.  v.  Bezek,  168  Pa.  603;  Sayres  v.  Com.  88  Pa.  291;  Lynch  v.  Com. 
77  Pa.  205;  Ortwein  v.  Com.  76  Pa.  414,  18  Am.  Eep.  420;  Com.  v. 
Sayres,  12  Phila.  553;  Com.  v.  Lynch,  3  Pittsb.  412;  State  v.  Stark,  1 
Strobh.  L.  479;  Leache  v.  State,  22  Tex.  App.  279,  58  Am.  Eep.  638;  Mas- 
sengale  v.  State,  24  Tex.  App.  181;  Johnson  v.  State,  10  Tex.  App.  571; 
King  v.  State,  9  Tex.  App.  558;  Webb  v.  State,  9  Tex.  App.  490;  Smith  v. 
State,  22  Tex.  316;  Clarke  v.  State,  8  Tex.  App.  350;  Dejarnette  v.  Com. 
75  Va.  867;  Baccigalupo  v.  Com.  33  Gratt.  807,  36  Am.  Eep.  795;  Boswell 
v.  Com.  20  Gratt.  860;  State  v.  Douglass,  28  W.  Va.  297;  State  v.  Eobin- 
son,  20  W.  Va.  713,  43  Am.  Eep.  799;  State  v.  Strauder,  11  W.  Va.  745,  27 
Am.  Eep.  606;  United  States  v.  McGlue,  1  Curt.  C.  C.  1;  Eeg.  v.  Layton, 
4  Cox,  C.  C.  149;  Eeg.  v.  Stokes,  3  Car.  &  K.  185;  Eeg.  v.  Townley,  3 
Fost.  &  F.  839;  Hadfield's  Case,  27  How.  St.  Tr.  1281;  Eeg.  v.  Higginson, 
1  Car.  &  K.  129. 

1  State  v.  Martin  (N.  J.)  3  Crim.  L.  Mag.  44. 

2  Kriel  v.  Com.  5  Bush,  366;  Parker's  Case,  1  Collinson  on  Lunacy,  477. 
s  Humphreys  v.  State,  45  Ga.  190:   Beck  v.  State,  76  Ga.  452;   Holsen- 

bake  v.  State,  45  Ga.  43.     And  see  Bellingham's  Case,  1  Collinson  on  Lun- 
acy, 636. 

4  Sanders  v.  State,  18  Tex.  App.  372. 

5  People  v.  McDonell,  47  Cal.  134;  Com.  v.  Farkin,  3  Pa.  L.  J.  480; 
State  v.  Spencer,  21  N.  J.  L.  196;  Com.  v.  McCauley,  16  Phila.  502;  State 
v.  Martin  (N.  J.)  3  Crim.  L.  Mag.  44;  Clark  v.  State,  8  Tex.  App.  350; 
Webb  v.  State,  5  Tex.  App. '596;  Smith  v.  State,  31  Tex.  Crim.  Eep.  14; 
Smith  v.  State,  19  Tex.  App.  95;  King  v.  State,  9  Tex.  App.  558;  M'Nagh- 
ten's  Case,  10  Clark  &  F.  200;   Kleim's  Case,  Bay's  Med.  Jiu\  (5th  ed.)  §  42. 


468  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

insanity  may  be  established  by  proof  which  is  satisfactory  to  the 
jury,  such  as  falls  fairly  from  a  preponderance  of  the  evidence,1 
or  by  such  as  preponderates  and  reasonably  satisfies  the  jury,2  or 
by  satisfactory  or  at  least  preponderating  evidence.3  And  an 
instruction  that  insanity  must  be  shown  by  the  weight  and  pre- 
ponderance of  the  testimony  is  a  mere  informality  and  not  a 
ground  for  reversal,  though  the  jurors  might  be  led  to  believe 
that  it  required  something  more  than  a  mere  conviction  of  the 
mind.4  And  an  instruction  that  insanity  must  be  established 
by  a  preponderance  of  evidence  to  the  satisfaction  of  the  jury  is 
not  reversible  error,  as  there  might  be  a  preponderance  and  still 
a  failure  to  satisfy  them.5  But  an  instruction  that  insanity  must 
be  clearly  proved  is  objectionable  as  imposing  too  great  a  burden 
upon  the  accused,  as  it  need  only  be  proved  by  fairly  preponder- 
ating evidence.6  And  one  requiring  clear  preponderating  evi- 
dence, instead  of  fairly  preponderating  evidence,  is  erroneous,7  as 
tending  to  lead  the  jury  to  believe  that  something  more  than  a 
preponderance,  or  what  would  reasonably  satisfy  them,  was  neces- 
sary.8 And  error  in  instructing  that  insanity  must  be  clearly 
proved  is  not  remedied  by  a  subsequent  instruction  that  it  must 
be  proved  by  a  preponderance  of  the  evidence,  as  it  cannot  be 
known  which  of  the  two  measures  the  jury  adopted.9  An  in- 
struction that  insanity  must  be  clearly  proved,  however,  has  been 
held  proper,  as  a  preponderance  of  the  evidence  is  sufficient  to 
constitute  clear  proof,10  and  not  objectionable  as  a  charge  upon 
the  degree  or  measure,  and  not  upon  the  weight  of  evidence,11  or 


I  Meyers  v.  Com.  83  Pa.  141. 

8  State  v.  Williamson,  106  Mo.  162;  State  v.  Lewis,  20  Nev.  333. 

3  Brown  v.  Com.  78  Pa.  122. 

4  State  v.  Smith,  53  Mo.  267. 

5  State  v.  Payne,  86  N.  C.  609. 

6  Com.  v.  Gerade,  145  Pa.  289. 

'  Coyle  v.  Com.  100  Pa.  573,  45  Am.  Kep.  397;  State  v.  Hundley,  16  Mo. 
414. 

3  State  v.  Hundley,  46  Mo.  414. 

9  Com.  v.  Gerade,  145  Pa.  289. 

10  Smith  v.  State,  19  Tex.  App.  95. 

II  Giebel  v.  State,  28  Tex.  App.  151. 


EVIDENCE    OF    INSANITY.  469 

as  requiring  that  evidence  must  more  than  predominate,  as  it  only 
requires  that  the  predominance  must  be  clearly  apparent.1 

The  preponderance  of  evidence  required  consists  of  the  greater 
weight  of  credible  evidence  in  the  case,"  such  as  can  be  perceived 
from  a  fair  consideration  of  the  evidence  ; 3  the  rule  requiring 
the  evidence  in  a  criminal  prosecution  to  satisfy  the  jury  beyond 
a  reasonable  doubt  applying  only  to  the  general  conclusion  of 
guilty  or  not  guilty  upon  the  whole  evidence,  and  not  to  a  ques- 
tion arising  in  the  case  as  to  the  insanity  of  the  accused  ;4  and  the 
presumption  of  sanity  having  its  practical  application  in  imposing 
the  burden  of  proof  upon  him  who  sets  up  insanity,  and  not  as 
weighing  against  any  measurable  amount  of  evidence.5  Insanity 
is  a  simple  question  of  fact  to  be  proved  like  any  other  fact,  by 
evidence  which  reasonably  satisfies  the  jury.6  And  it  is  sufficient 
if  the  evidence  be  such  as  would  justify  the  jury  in  a  civil  case  in 
finding  insanity  upon  the  single  issue  of  sane  or  insane  submitted 
to  them.7  Nor  is  it  necessary  that  the  proof  should  be  direct  or 
positive ;  it  may  be  shown  by  such  facts  and  circumstances  as 
convince  the  mind  of  its  existence  the  same  as  any  other  fact/ 
And  as  a  general  rule  the  whole  evidence  is  to  be  considered,9 
and  the  rebutting  proof  which  may  be  considered  may  arise  either 
out  of  the  evidence  for  the  prosecution  or  that  of  the  defense;10 
and  a  mere  doubt  of  sanity,  however  rational,  is  insufficient  to 

1  People  v.  Hamilton,  62  Cal.  377,  Overruling  People  v.  Wreclen,  59 
Cal.  392. 

s  State  v.  Trout,  74  Iowa,  545;  Farrer  v.  State,  2  Ohio  St.  54. 

3  State  v.  Grear,  29  Minn.  221. 

4  State  v.  Felter,  32  Iowa,  53;  State  v.  Starling,  6  Jones,  L.  366;  People 
v.  Ward,  105  Cal.  335. 

5  State  v.  Jones,  64  Iowa,  356.  And  see  State  v.  Bartlett,  43  N.  H.  224, 
80  Am.  Dec.  154. 

6  State  v.  Hundley,  46  Mo.  414;  State  v.  Starling,  6  Jones,  L.  366. 

7  People  v.  Hamilton,  62  Cal.  377;  People  v.  Massersmith,  61  Cal.  246; 
People  v.  Wilson,  49  Cal.  13;  Com.  v.  Gerade,  145  Pa.  289. 

8  State  v.  Hockett,  70  Iowa,  442;  State  v.  Pagels,  92  Mo.  300. 

9  State  v.  Strauder,  11  W.  Va.  745;  State  v.  Scott,  49  La.  Ann.  253,  36 
L.  E.  A.  721.  And  see  Com.  v.  Eddy,  7  Gray,  583;  De  jarnette  v.  Com. 
75  Va.  867;  United  States  v.  McGlue,  1  Curt.  C.  C.  1. 

10  Com.  v.  Kogers,  7  Met  500,  41  Am.  Dec.  458;  Com.  v.  Heath,  11  Gray, 
303;  Kriel  v.  Com.  5  Bush,  363;  State  v.  Mcintosh,  39  S.  C.  97. 


470 


MEDICAL    JURISPRUDENCE    OF    INSANITY. 


rebut  the  legal  presumption  of  sanity,  and  cannot  justify  an  ac- 
quittal.1 

Some  of  the  cases,  however,  which  may  be  deemed  to  establish 
the  rule,  at  least  in  Delaware,  Georgia,  and  South  Carolina,  while 
holding  to  the  rule  that  insanity  must  be  established  by  a  pre- 
ponderance of  the  evidence  or  to  the  satisfaction  of  the  jury, 
held  that  evidence  bearing  upon  the  question  of  insanity  should 
be  considered  in  connection  with  all  other  evidence  in  determin- 
ing whether  or  not,  upon  a  view  of  the  whole  case,  there  is  rea- 
sonable doubt  of  guilt.2  And  if,  upon  a  consideration  of  all  the 
evidence,  the  state's  as  well  as  the  defendant's,  any  reasonable 
doubt  of  the  guilt  of  the  accused  remains,3  or  if  any  reasonable 
doubt  of  his  accountability  remains,4  which  the  presumption  of 
sanity  and  proof  on  the  part  of  the  state  has  not  removed,  the 
accused  should  be  acquitted.  But  the  doubt  to  be  raised  in  favor 
of  the  person  must  be  a  serious,  well-founded,  and  satisfactory 
doubt,5  and  refusal  to  instruct  the  jury  that  if  they  entertain  a 
reasonable  doubt  of  sanity  they  should  acquit  is  not  error  where 
the  court  had  fully  charged  with  reference  to  reasonable  doubt, 
with  regard  to  the  whole  case.6     Nor  is  failure  to  charge  that 

1  Maxwell  v.  State,  89  Ala.  150;  Gunter  v.  State,  83  Ala.  96;  Parsons  v. 
State,  81  Ala.  577,  60  Am.  Eep.  193;  Ford  v.  State,  71  Ala.  385,  5  Crim.  L. 
Mag.  32;  People  v.  Myers,  20  Cal.  518;  Kriel  v.  Com.  5  Bush,  362;  State 
v.  Hunting,  21  Mo.  464;  State  v.  Johnson,  91  Mo.  439;  Lynch  v.  Com.  77 
Pa.  205;  Ortwein  v.  Com.  76  Pa,  414,  18  Am.  Eep.  420;  Com.  v.  Lynch,  3 
Pittsb.  412;  State  v.  Douglass,  28  W.  Va.  297;  State  v.  Strauder,  11  W.  Ya. 
745. 

2  Carr  v.  State,  96  Ga.  284. 

3  State  v.  Mcintosh,  39  S.  C.  97;  Westmorland  v.  State,  45  Ga.  225; 
Brown  v.  Com.  14  Bush,  398;  Smith  v.  Com.  1  Duv.  224;  Jane  v.  Com.  2 
Met.  (Ky.)  30;  State  v.  Gardiner,  Wright  (Ohio)  392;  State  v.  Merrick,  19 
Me.  398. 

6  State  v.  Eeidell,  9  Houst.  (Del.)  470;  State  v.  Thomas,  1  Houst.  Crim. 
Eep.  511;  Farrer  v.  State,  2  Ohio  St.  54;  State  v.  Gardiner,  Wright  (Ohio) 
392;  State  v.  Coleman,  20  S.  C.  441;  Anderson  v.  State,  42  Ga.  9;  West- 
morland v.  State,  45  Ga.  225.  And  see  Smith  v.  Com.  1  Duv.  224;  Com. 
v.  Winnemore,  1  Brewst.  356;  Boswellv.  Com.  20  Gratt.  860;  State  v.  Mor- 
phy,  33  Iowa,  270,  11  Am.  Eep.  122;  State  v.  Thompson,  Wright  (Ohio) 
624. 

5  State  v.  Coleman,  20  S.  C.  441;  Smith  v.  Com.  1  Duv.  224;  Kriel  v. 
Com.  5  Bush,  362. 

6  Webb  v.  State,  9  Tex.  App.  490. 


EVIDENCE    OB'    INSANITY.  471 

insanity  must  be  proved  by  a  preponderance  of  the  evidence,  and 
that  the  evidence  bearing  upon  the  question  should  be  considered 
in  connection  with  the  other  evidence  in  determining  whether 
there  was  reasonable  doubt  of  guilt,  erroneous  where  the  charge 
given  was  sufficiently  full  and  fair  to  give  the  accused  the  benefit 
of  all  the  evidence  relating  to  insanity  for  the  purpose  of  casting 
doubt  upon  his  guilt.1  So,  in  two  early  Alabama  cases  holding 
that  insanity  must  be  proved  beyond  a  reasonable  doubt,  it  was 
also  held  that  a  reasonable  doubt  of  sanity  upon  the  whole  evi- 
dence would  justify  an  acquittal.2 

§  4.  Reasonable  doubt  of  insanity. 

Another  of  the  leading  rules  as  to  the  measure  of  proof  of  in- 
sanity, which  is  at  least  holding  its  own  if  not  gaining  ground,  is 
the  one  holding  that  a  criminal  act  includes  the  element  of  a 
rational  agency  which  must  be  shown  by  the  state  as  well  as  any 
other  element  of  the  crime,3  sanity  being  a  necessary  ingredient 
of  criminal  responsibility  ;4  and  a  reasonable  doubt  as  to  the  sanity 
of  the  accused  being  a  reasonable  doubt  as  to  his  guilt  entitling 
him  to  an  acquittal."  Within  this  rule  if  there  arises  from  the  evi- 
dence coming  from  any  quarter  a  reasonable  doubt  as  to  the 
sanity  of  the  accused  the  presumption  of  sanity  is  overcome, 
and  he  is  entitled  to  an  acquittal  unless  the  state  meets 
and   overcomes    the    reasonable   doubt    arising    in    his    favor.6 

1  Carr  v.  State,  96  Ga.  284. 

2  State  v.  Brinyea,  5  Ala.  241;  State  v.  Marler,  2  Ala.  43,  36  Am.  Dec. 
398.     But  see  later  Alabama  eases  cited  above. 

3  Armstrong  v.  State,  30  Fla.  170,  17  L.  B.  A.  484. 

4  Chase  v.  People,  40  111.  352;  Hopps  v.  People,  31  311.  385,  83  Am.  Dec. 
231;  People  v.  Garbutt,  17  Mich.  9,  97  Am.  Dec.  162;  People  v.  McCanu, 
16  K  Y.  58,  69  Am.  Dec.  642. 

4  State  v.  Nixon,  32  Kan.  205;  State  v.  Crawford,  11  Kan.  32;  Langdon 
v.  People,  133  111.  382;  Lilly  v.  People,  148  111.  467;  Jamison  v.  People, 
145  111.  357. 

6  Armstrong  v.  State,  30  Fla.  170,  17  L.  E.  A.  484;  Armstrong  v.  State, 
27  Fla.  366;  Hodge  v.  State,  26 Fla.  11;  State  v.  Eeidell,  9  Houst.  (Del.)  470; 
Lilly  v.  People,  148  111.  467;  Jamison  v.  People,  145  111.  357;  Montag  v. 
People,  141  111.  75;  Langdon  v.  People,  133  HI.  382;  Dacey  v.  People,  116 
IU.  555;  Hopps  v.  People,  31  IU.  385,  83  Am.  Dec.  231;  Chase  v.  People, 
40  111.  352;  Plake  v.  State,  121  Ind.  433;  Hiler  v.  State,  4  Blackf.  552;  Polk 
v.  State,  19  Ind.  170,  81  Am.  Dec.  382;  Guetig  v.  State,  66  Ind.  94,  32  Am. 


472  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

And  where  there  is  proof  of  insanity,  whether  on  the  part  of  the 
government  or  of  the  accused,  it  is  incumbent  upon  the  prosecu- 
tor to  satisfy  the  jury  beyond  a  reasonable  doubt  of  the  existence 
of  all  the  elements  constituting  the  offense,  including  the  neces- 
sary soundness  of  mind.1  Sanity  being  the  normal  condition  the 
prosecution  need  not  introduce  evidence  to  prove  it  in  the  first 
instance  until  the  presumption  of  its  existence  is  attacked,  but 
when  the  jury  comes  to  consider  the  whole  case  they  must  do  so 
upon  the  basis  that  as  to  each  and  every  portion  of  it  they  should  be 
satisfied  beyond  a  reasonable  doubt  before  they  can  convict.2     To 

Eep.  99;  Stevens  v.  State,  31  Ind.  485,  99  Am.  Dec.  634;  Bradley  v.  State, 
31  Ind.  492;  State  v.  Nixon,  32  Kan.  205;  State  v.  Crawford,  11  Kan.  32; 
People  v.  Finley,  38  Mich.  482;  People  v.  Garbutt,  17  Mich.  22,  97  Am. 
Dec.  162;  Cunningham  v.  State,  56  Miss.  269,  31  Am.  Eep.  360;  Ford  v. 
State,  73  Miss.  734,  35  L.  R.  A.  117;  Russell  v.  State,  53  Miss.  367;  Smith 
v.  State,  4  Neb.  277;  State  v.  Waterman,  1  Nev.  543;  Wright  v.  People,  4 
Neb.  407;  Faulkner  v.  Territory,  6  N.  M.  464;  Brotherton  v.  People,  75  N. 
Y.  159;  People  v.  McCann,  16  N.  Y.  58,  69  Am.  Dec.  642;  Moett  v.  People, 
85  N.  Y.  373;  Wagner  v.  People,  2  Keyes,  684;  O'Connell  v.  People,  87  N. 
Y.  377,  41  Am.  Rep.  379,  Affirming  62  How.  Pr.  436;  Walker  v.  People,  26 
Hun,  67,  1  N.  Y  Crim.  Rep.  7,  Affirmed  88  N.  Y.  81;  People  v.  Casey,  2  N. 
Y.  Crim.  Rep.  187,  Reversed  on  other  grounds,  2  N.  Y.  Crim.  Rep.  194; 
People  v.  Coleman,  1  N.  Y.  Crim.  Rep.  1;  State  v.  Coleman,  20  S.  C.  441; 
State  v.  Mcintosh,  39  S.  C.  97;  King  v.  State,  91  Tenn.  617;  Coffee  v.  State, 
3  Yerg.  283,  24  Am.  Dec.  570;  Dove  v.  State,  3  Heisk.  348;  Lawless  v. 
State,  4  Lea,  179;  Revoir  v.  State,  82  Wis.  295;  State  v.  Patterson,  45  Yt. 
308,  12  Am.  Rep.  200;  Davis  v.  United  States,  160  U.  S.  469,  40  L.  ed.  499; 
Guiteau's  Case,  10  Fed.  Rep.  161;  United  States  v.  Faulkner,  35  Fed.  Rep. 
730;  Chaffee  v.  United  States,  85  U.  S.  18  Wall.  517,  21  L.  ed.  908;  United 
States  v.  Lancaster,  7  Biss.  440;  Lay's  Case,  1  Lewin,  C.  C.  239.  And  see 
Lilly  v.  People,  148  HI.  467;  Ogletree  v.  State,  28  Ala.  693;  Stuart  v.  State, 
1  Baxt.  178. 

1  State  v.  Johnson,  40  Conn.  136;  Hite  v.  Sims,  94  Ind.  333;  Stevens  v. 
State,  31  Ind.  485,  99  Am.  Dec.  634;  State  v.  Reddick,  7  Kan.  143;  Com. 
v.  McKie,  1  Gray,  61,  61  Am.  Dec.  410;  Cunningham  v.  State,  56  Miss. 
269,  31  Am.  Rep.  360;  Ford  v.  State,  73  Miss.  734,  35  L.  R.  A.  117;  Furst 
v.  State,  31  Neb.  403;  State  v.  Bartlett,  43  N.  H.  224,  80  Am.  Dec.  154; 
Moett  v.  People,  85  N.  Y.  373;  Walker  v.  People,  26  Hud,  67,  1  N.Y.  Crim. 
Rep.  7,  Affirmed  88  N.  Y.  81;  Com.  v.  Gerade,  145  Pa.  289;  Davis  v. 
United  States,  160  U.  S.  469,  40  L.  ed.  499.  And  see  Com.  v.  Heath,  11 
Gray,  303. 

2  People  v.  Garbutt,  17  Mich.  9,  97  Am.  Dec.  162;  Guetig  v.  State,  66 
Ind.  94,  32  Am.  Rep.  99;  State  v.  Crawford,  11  Kan.  32;  Walker  v.  People, 
26  Hun,  67,  1  N.  Y.  Crim.  Rep.  7,  Affirmed  88  N.  Y  81;   Moett  v.  People, 


EVIDKKCF.    OF    INSANITY.  473 

overcome  the  presumption  of  sanity  evidence  must  be  produced 
sufficient  at  least  to  raise  a  reasonable  doubt  of  sanity.1  But 
when  this  is  done  the  accused  is  entitled  to  an  acquittal  where  the 
whole  evidence,  including  that  supplied  by  the  presumption  of 
sanity  and  any  other  presumption  in  the  case,  does  not  exclude 
beyond  a  reasonable  doubt  the  hypothesis  of  insanity,2  without 
reference  to  the  question  whether  the  evidence  was  adduced  by 
the  prosecution  or  by  the  defendant ; 3  the  fact  that  there  may 
have  been  evidence  which,  taken  by  itself,  was  sufficient  to  raise 
a  reasonable  doubt  as  to  sanity,  not  justifying  an  acquittal,  as 
there  may  have  been  evidence  tending  to  rebut  the  defense  of 
insanity,  the  reasonable  doubt  upon  which  the  jury  should  act 
being  one  raised  from  a  consideration  of  all  the  evidence  in  the 
case.4  And  the  accused  is  entitled  to  an  acquittal  if  the  jury 
entertain  a  reasonable  doubt  as  to  his  soundness  of  mind  at  the 
time  of  the  criminal  act,  though  they  believe  he  had  judgment 
and  reason  sufficient  to  determine  between  right  and  wrong  with 
respect  to  the  ordinary  affairs  of  life ; &  but  they  should  convict 
if  they  believe  beyond  a  reasonable  doubt  that  he  knew  right 
from  wrong  and  was  capable  of  choosing  either  to  do  or  not  to' 
do  the  act,  though  they  believe  that  he  was  not  entirely  and  per- 
fectly sane.6 

The  reasonable  doubt  which  will  justify  an  acquittal  must  be  a 
rational,  well-founded  one,7  and  should  include  all  of  the  constitu- 

85  N.  Y.  373;  O'Brien  v.  People,  48  Barb.  274;  Walter  v.  People,  32  N.T. 
147;  Montag  v.  People,  141  111.  75;  Cunningham  v.  State,  56  Miss.  269,  31 
Am.  Bep.  360. 

1  Jamison  v.  People,  145  111.  357;  Guetig  v.  State,  66  Ind.  94,  32  Am. 
Bep.  99;  State  v.  Malm,  25  Kan.  182;  Faulkner  v.  Territory,  6  N.  M.  464; 
United  States  v.  Faulkner,  35  Fed.  Bep.  730.  And  see  Brotherton  v.  Peo- 
ple, 75  N.  Y.  159. 

-  Davis  v.  United  States,  160  U.  S.  469,  40  L.  ed.  499;  Guiteau's  Case, 
10  Fed.  Bep.  161;  State  v.  Crawford,  11  Kan.  32;  Brotherton  v.  People, 
75  N.  Y.  159;   Cunningham  v.  State,  56  Miss.  269,  31  Am.  Bep.  360. 

3  Hodge  v.  State,  26  Fla.  11. 

4  Jamison  v.  People,  145  111.  357.  And  see  Guetig  v.  State,  66  Ind.  94, 
32  Am.  Bep.  99. 

6  Stevens  v.  State,  31  Ind.  485,  99  Am.  Dec.  634. 
6  Hornish  v.  People,  142  111.  620,  18  L.  B.  A.  237. 

1  Chase  v.  People,  40  111.  352;  Hodge  v.  State,  26  Fla.  11;  State  v.  Cole- 
man, 20  S.  C.  441. 


4:74  MEDICAL    J CKISPRUDENCE    OF    INSANITY. 

tinent  elements  of  legal  responsibility.1  There  should  be  clear, 
satisfactory  evidence  of  insanity,  and  the  defense  should  not  be 
sustained  on  vague  and  shadowy  or  fanciful  grounds  or  mere  con- 
jecture.2 But  the  evidence  of  insanity  need  not  preponderate,3 
nor  establish  it  beyond  a  reasonable  doubt.4  Thus,  evidence  that 
the  defendant  was  in  trouble  with  his  family  and  disturbed  in  mind 
and  somewhat  excited  is  not  sufficient  to  raise  a  reasonable  doubt 
which  would  require  the  prosecution  to  establish  his  sanity/ 
Nor  is  evidence  that  the  conduct  of  the  accused  was  at  times 
peculiar,  and  that  he  was  nervous  and  became  greatly  excited 
when  talking  of  the  subject-matter  of  his  crime,  where  it 
appears  that  he  pursued  his  daily  avocations  and  was  treated  by 
others  as  sane,  and  that  he  was  actuated  by  malice."  Insanity 
need  not  be  submitted  to  the  jury  as  a  separate  issue,  however;  it 
is  sufficient  if  they  are  required  to  be  satisfied  beyond  a  reason- 
able doubt  of  the  defendant's  guilt.''  And  an  instruction  that 
insanity  must  be  clearly  proved  is  not  incorrect  where  the  jury  is 
also  told  that  the  person  must  be  given  the  benefit  of  any  doubt 
as  to  his  sanity  arising  from  the  evidence.8  And  one  authorizing 
conviction  only  if  the  jury  believed  beyond  a  reasonable  doubt 
that  the  deed  was  done  with  malice  aforethought  is  not  objection- 
able as  requiring  the  jury  to  find  a  verdict  regardless  of  the 
defendant's  mental  condition.9  And  one  requiring  the  jury  to 
carefully  consider  the  evidence  for  the  reason  that  an  insane  per- 
son ought  not  to  be  punished  is  a  charge  as  to  the  duty  of  careful 
scrutiny,  and  not  as  to  the  degree  of  evidence,  which  would  be 

!  Smith  v.  Com.  1  Duv.  224. 

s  Armstrong  v.  State,  27  Fla.  366;  Walker  v.  People,  88  N.  T.  81;  Hodge 
v.  State,  26  Fla.  11;  Fisher  v.  People,  23  HI.  283.  And  see  Bro-n-n  v.  Com. 
14  Bush,  398;   State  v.  Hansen,  25  Or.  411. 

3  Polk  v.  State,  19  Ind.  170,  81  Am.  Dec.  382;  Guetig  v.  State,  66  Ind. 
94,  32  Am.  Eep.  99;   Dacey  v.  People,  116  HI.  555. 

4  Armstrong  v.  State,  27  Fla.  366. 

5  Montag  v.  People,  141  HI.  75. 

6  Lilly  v.  People,  148  HI.  467. 

7  Hornish  y.  People,  142  HI.  620,  18  L.  K.  A.  237;  O'Connell  v.  People, 
87  X.  H.  377,  41  Am.  Eep.  379. 

8  Walker  v.  People,  88  N.  Y.  86,  Affirming  26  Hun,  67,  1  N.  Y.  Crim. 
Eep.  7.     And  see  O'ConneU  v.  People,  87  N.  Y.  377,  41  Am.  Eep.  379. 

9  Upstone  v.  People,  103  111.  169." 


EVIDENCE    OF    INSANITY.  475 

objectionable  on  the  ground  that  the  question  was  not  whether 
the  accused  was  insane,  but  whether  the  jury  entertain  a  reason- 
able doubt  as  to  his  sanity.' 

§  5.  Measure  of  proof  in  civil  cases. 

The  general  rule  would  seem  to  be  that  insanity,  like  all 
other  facts  in  a  civil  case,  may  be  established  by  a  mere  prepon- 
derance of  the  evidence.  Thus,  evidence  of  insanity  to  overcome 
the  presumption  that  all  acts  performed  by  an  adult  are  valid  and 
binding  must  be  clear  and  satisfactory.2  But  no  particular  quan- 
tity of  evidence  is  necessary  to  sustain  the  validity  of  an  act  on 
the  question  of  mental  capacity ;  the  juiy  should  determine  the 
facts  upon  the  weight  of  evidence  as  on  any  other  question.8 
The  question  where  sanity  is  impeached  and  the  evidence  is  con- 
flicting is  not  whether  the  facts  adduced  in  support  of  sanity  are, 
in  general,  indications  of  sanity,  but  whether  they  are  inconsist- 
ent with  or  sufficiently  explanatory  of  the  indication  of  insanity 
produced  by  the  other  side,"  the  proof  being  required  to  be  suffi- 
cient to  overcome  the  presumption  of  sanity.5 

"With  reference  to  wills,  where  the  rule  that  the  burden  of 
proof  of  insanity  rests  with  him  who  alleges  it  is  in  vogue  it  is 
usually  held  to  be  incumbent  upon  the  contestant  to  prove  inca- 
pacity to  the  satisfaction  of  the  court  or  jury  before  they  would 
be  justified  in  setting  aside  a  will.6  And  it  has  been  held  that  it 
must  be  established  by  a  preponderance  of  the  evidence.7  And 
in  a  doubtful  case,  unless  there  is  a  preponderance  of  proof  of 

1  Goodwin  v.  State,  96  Ind.  550. 

s  McCarty  v.  Kearnan,  86  111.  291;  English  v.  Porter,  109  111.  285;  Tit- 
comb  v.  Vantyle,  84  111.  371;  Myatt  v.  Walker,  44  111.  487;  Kennedy  v. 
Marrast,  46  Ala.  161;  Howe  v.  Howe,  99  Mass.  88;  State  v.  Geddis,  42  Iowa, 
268;  Com.,  Helmbold,  v.  Kirkbride,  11  Phila.  427;  Gibbons  v.  Dunn,  46 
Mich.  146;  Dorchester  v.  Dorchester,  3  N.  Y.  Supp.  238,  Reversed  on  other 
grounds  121  N.  Y.  156. 

3  Rigg  v.  Wilton,  13  HI.  15,  54  Am.  Dec.  419. 

4  Steed  v.  Callay,  Keen,  620. 

6  Sloan  v.  Maxwell,  3  N.  J.  Eq.  563. 

6  Jamison  v.  Jamison,  3  Houst.  (Del.)  108;  Mullins  v.  Cottrell,  41  Miss. 
291;  Philadelphia  Trust  &  S.  D.  Co.  v.  Drinkhouse,  17  Phila.  23;  Gass  v. 
Gass,  3  Humph.  278. 

1  Clements  v.  McGinn  (Cal.)  33  Pac.  920;  Newhard  v.  Yundt,  132  Pa.  324. 


476  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

mental  unsoundness,  the  issue  should  be  found  in  favor  of  sanity.1 
And  the  previous  probate  of  a  will  raises  no  presumption  that 
the  testator  was  of  sound  and  disposing  mind  which  the  contest- 
ant is  bound  to  overcome  by  a  preponderance  of  evidence.' 
So,  where  incompetency  and  undue  influence  are  the  issue,  posi- 
tive proof  must  be  made  in  support  of  each  proposition.3  And 
where,  upon  the  whole  evidence,  the  fact  of  capacity  or  incapac- 
ity remains  doubtful,  the  will  cannot  be  rejected  on  that  ground,4 
the  presumption  of  sanity  taking  effect  in  such  case  in  its  favor.5 
Upon  the  other  hand,  cases  holding  that  the  burden  of  proof  of 
sanity  in  a  will  contest  rests  with  the  proponents  usually  require 
them  to  prove  soundness  of  mind  upon  the  part  of  the  testator 
to  the  satisfaction  of  the  court  or  jury,6  or  by  a  preponderance  of 
the  evidence.7  The  evidence  of  the  proponent  must  be  sufficient 
to  outweigh  that  offered  by  the  contestant.6  And  where  the  evi- 
dence leaves  the  question  in  doubt  the  finding  should  be  against 
the  will.9  And  an  instruction  that  it  is  incumbent  on  those  seek- 
ing to  establish  a  will  made  by  a  person  adjudged  to  be  of  un- 
sound mind  to  show  by  clear,  explicit,  and  satisfactory  evidence 
that  he  had  sufficient  mental  capacity,  is  not  rendered  objection- 
able by  the  use  of  the  words  "  clear,  explicit,  and  satisfactory  " 
as  an  invasion  of  the  province  of  the  jury.10  Xor  will  a  require- 
ment that  the  proponent  shall  prove  the  execution  of  the  will, 
and  that  the  contestants  shall  prove  the  unsoundness  of  mind  by 

1  Re  Cole's  Will,  49  Wis.  179.  And  see  Hawkins  v.  Grimes,  13  B.  Mon. 
257. 

;  Clements  v.  McGinn  (Cal.)"33  Pac.  920. 

3  Prentis  v.  Bates,  88  Mich.  567. 

4  Miller  v.  White,  5  Redf.  320;   Grubbs  v.  McDonald,  91  Pa.  236. 

5  Brooks  v.  Barrett,  7  Pick.  94;   Hawkins  v.  Grimes,  13  B.  Mon.  257. 

6  Delafield  v.  Parish.,  25  N.  Y.  9;  Re  Flansburgb,  82  Hun,  49;  Chrisman 
v.  Chrisman,  16  Or.  127;  Vance  v.  Upson,  66  Tex.  476;  Riddell  v.  John- 
son, 26  Gratt.  152;  Browning  v.  Budd,  6  Moore,  P.  C.  430.  And  see 
Keeler  v.  Keeler,  20  N.  Y.  S.  R.  439. 

*  Robinson  v.  Adams,  62  Me.  369,  16  Am.  Rep.  473;  Williams  v.  Robin- 
son, 42  Vt.  658,  1  Am.  Rep.  359.  And  see  Barber's  Appeal,  63  Conn.  393, 
22  L.  R.  A.  90. 

&  Aikin  v.  Weckerly,  19  Mich.  482. 

9  Sutton  v.  Sadler,  3  C.  B.  X.  S.  87,  3  Jur.  N.  S.  1150. 

10  Stevens  v.  Stevens,  127  Ind.  560. 


EVIDENCE    OF    INSANITY.  477 

a  preponderance  of  the  evidence,  justify  a  reversal,  though  the 
word  "  preponderance  "  might  well  have  heen  omitted.1  An 
absolute  refusal,  however,  to  charge  the  jury  that  they  must  rest 
their  verdict  upon  a  preponderance  of  proof,  without  any  other 
instructions  upon  the  point,  is  error,  as  tending  to  lead  them  to 
imply  that  they  are  not  authorized  to  find  the  will  well  executed 
upon  a  balance  of  the  testimony.2  The  presumption  of  sanity 
cannot  be  given  the  effect  of  an  independent  fact  to  serve  as  a 
substantial  make-weight  against  counter  proof  ;  and  a  charge  that 
if  the  jury  should  find  the  evidence  to  be  balanced  they  should 
permit  the  legal  presumption  of  sanity  to  decide  the  question  is 
erroneous.3  Whatever  force  is  given  to  the  presumption  is  due, 
not  to  its  own  intrinsic  weight  as  a  distinct  item  of  proof,  but  to 
its  operation  in  rendering  the  circumstances  adduced  more  per- 
suasive.4 But  where  upon  the  whole  evidence  it  is  doubtful 
whether  the  party  is  sane  or  insane,  the  presumption  in  favor  of 
sanity  may  decide  the  question.6  So,  the  presumption  against 
suicide,  that  a  person  who  took  poison  did  it  unintentionally  or  by 
mistake,  is  a  disputable  one  standing  for  the  fact  only  until  over- 
come by  a  preponderance  of  the  evidence.8 

III.  Presumption  of  continuance. 

§  1.  Habitual  insanity. 
When  habitual,  chronic,  or  continuous  insanity  is  once  proved 
to  exist  it  is  presumed  to  continue  until  the  contrary  is  shown,7 

1  Morris  v.  Morton,  14  Ky.  L.  Kep.  360. 

2  Aikin  v.  Weckerly,  19  Mich.  482.  And  see  Barber's  Appeal,  63  Conn. 
393,  22  L.  E.  A.  90. 

3  McGinnis  v.  Keinpsey,  27  Mich.  363. 

4  McGinnis  v.  Keinpsey,  27  Mich.  363. 

6  Hawkins  v.  Grimes,  13  B.  Mon.  257;  Brooks  v.  Barrett,  7  Pick.  94. 

6  Bachrneyer  v.  Mutual  Keserve  Fund  L.  Asso.  87  Wis.  328. 

1  Wray  v.  Wray,  33  Ala.  187;  Pike  v.  Pike,  104  Ala.  642;  State  v.  John- 
son, 40  Conn.  136;  Duffield  v.  Bobeson,  2  Harr.  (Del.)  375;  Armstrong  v. 
Timmons,  3  Harr.  (Del.)  342;  State  v.  Brown,  Houst.  Crim.  Bep.  539; 
Armstrong  v.  State,  30  Fla.  170,  17  L.  B.  A.  484;  Dicken  v.  Johnson,  7 
Ga.  484;  Langdon  v.  People,  133  HI.  382;  Menkins  v.  Lightner,  18  HI. 
282;  Goodwin  v.  State,  96  Ind.  550;  Wallis  v.  Luhring,  134  Ind.  447;  Bush 
'v.  Megee,  36  Ind.  69;  Corbit  v.  Smith,  7  Iowa,  60,  71  Am.  Dec.  431;  State 
v.  Beddick,  7  Kan.  143;    Hawkins  v.  Grimes,  13  B.  Mon.  257;   Carpenter 


478  MEDICAL    jrRISPKUDENCE    OF   INSANITY. 

in  the  absence  of  an  allegation  of  restoration  of  soundness  ; '  and 
it  is  not  necessary  to  allege  that  the  party  had  not  been  subse- 
quently restored  to  reason  ; 2  and  the  burden  rests  with  the  party 
asserting  it  of  proving  restoration  or  a  lucid  interval  at  the  very 
time  of  the  act  in  question.3     The  presumption  that  insanity  con- 

v.  Carpenter,  8  Bush,  283;  Weston  v.  Higgins,  40  Me.  102;  Halley  v. 
Webster,  21  Me.  461;  Wright  v.  Wright,  139  Mass.  177;  Eicketts  v.  Jolliff, 
62  Miss.  440;  Mullins  v.  CottreU,  41  Miss.  291;  State  v.  Lowe,  93  Mo.  547; 
Boylan  v.  Meeker,  28  X.  J.  L.  274;  State  v.  Spencer,  21  X.  J.  L.  196; 
Cook  v.  Cook,  53  Barb.  180;  Hall  v.  Unger,  2  Abb.  (U.  S.)  507;  Dexter  v. 
Hall.  82  U.  S.  15  Wall.  9,  21  L.  eel.  73;  Com.  v.  Winnemore,  1  Brewst. 
(Pa.)  356;  Aurentz  v.  Anderson,  3  Pittsb.  310;  Grabill  v.  Ban-,  5  Pa.  441, 
47  Am.  Dec.  418;  Rogers  v.  Walker,  6  Pa.  371,  47  Am.  Dec.  470;  Fowlis 
v.  Davidson,  6  Xotes  of  Cases,  461;  Kinloch  v.  Palmer,  1  Mill.  Const.  215; 
Green  v.  State,  88  Tenn.  614;  Haynes  v.  Swann,  6  Heisk.  560;  Pnryear  v. 
Reese,  6  Coldw.  21;  Leache  v.  State,  22  Tex.  App.  279,  58  Am.  Rep.  638; 
Webb  v.  State,  5  Tex.  App.  596;  Overall  v.  State,  15  Lea,  672;  State  v. 
Wilner,  40  Wis.  304;  Smith  v.  Tebbitt,  L.  R.  1  Prob.  &  Div.  401,  36  L.  J. 
Prob.  X.  S.  35, 15  L.  T.  X.  S.  594. 

1  Wade  v.  State,  Xix,  37  Ind.  180. 

2  Physio-Medical  College  v.  Wilkinson,  108  Ind.  314. 

3  Pike  y.  Pike,  104  Ala.  642;  O'Donnell  y.  Rodiger,  76  Ala.  222,  52  Am. 
Rep.  322;  Saxon  y.  Whitaker,  30  Ala.  237;  Armstrong  y.  Timmons,  3 
Harr.  (Del.)  342;  Cnbbage  v.  Cubbage,  1  Harr.  (Del.)  461,  note;  Frazer 
v.  Frazer,  2  Del.  Ch.  260;  Dicken  v.  Johnson,  7  Ga,  484;  Griffin  v.  Griffin, 
R.  M.  Charlt.  217;  Menkins  y.  Lightner,  18  HI.  282;  Emery  v.  Hoyt,  46 
HI.  258;  Kenworthy  y.  Williams,  5  Ind.  375;  Achey  v.  Stephens,  8  Ind. 
411;  Corbit  v.  Smith,  7  Iowa,  60,  71  Am.  Dec.  431;  Bever  v.  Spangler,  93 
Iowa,  576;  Blake  v.  Rourke,  74  Iowa,  522;  Halley  v.  Webster,  21  Me.  461; 
Higgins  y.  Carlton,  28  Md.  115,  92  Am.  Dec.  666;  Ricketts  v.  Jolliff,  62 
Miss.  440;  State  v.  Lowe,  93  Mo.  547;  State  v.  Schaefer,  116  Mo.  96; 
Whitenack  v.  Stryker,  2  X.  J.  Eq.  8;  Goble  y.  Grant,  3  X.  J.  Eq.  629; 
Turner  v.  Cheesman,  15  X.  J.  Eq-  243;  Cook  v.  Cook,  53  Barb.  180;  Hall 
y.  Unger,  2  Abb.  (U.  S.)  507;  Dexter  v.  Hall,  82  U.  S.  15  Wall.  9,  21  L. 
ed.  73;  People  v.  Montgomery,  13  Abb.  P.  R.  X.  S.  207;  Jackson,  CaldwelL 
y.  King,  4  Cow.  207,  15  Am.  Dec.  354;  Jackson,  Yan  Dusen,  v.  Yan  Dusen, 
5  Johns.  144,  4  Am.  Dec.  330;  Clark  v.  Fisher,  1  Paige,  171,  19  Am.  Dec. 
402;  Morse  v.  Scott,  4  Dem.  507;  Morrison  v.  Smith,  3  Bradf.  209;  Ballew 
v.  Clark,  2  Led.  L.  23;  Grabill  v.  Barr,  5  Pa.  441,  47  Am.  Dec.  418 
Rogers  v.  Walker,  6  Pa.  371,  47  Am.  Dec.  470;  Harden  v.  Hays,  9  Pa.  151 
Wilson  v.  Mitchell,  101  Pa.  495;  Landis  v.  Landis,  1  Grant,  Cas,  248 
Aurentz  v.  Anderson,  3  Pittsb.  310;  Fowlis  v.  Davidson,  6  Xotes  of  Cases, 
461;  Lee  v.  Lee,  4  McCord,  L.  183,  17  Am.  Dec.  722;  Puryear  v.  Reese,  6 
Coldw.  21;  Hunt  v.  State,  33  Tex.  Crim.  Rep.  252;   Yance  v.  Upson,  66 


EVIDENCE    OF    INSANITY.  479 

tinues  is  not  a  presumption  of  law  but  an  inference  of  fact  vary- 
ing with  the  circumstances  of  the  case.1  And  it  is  a  question  of 
fact,  in  view  of  the  consideration  of  the  whole  case,  whether  a 
disability  once  shown  to  have  existed  continued  to  exist  until  the 
time  in  question.2  At  most  the  presumption  is  one  partly  of  law 
and  partly  of  fact.3  It  is  for  the  jury  to  say  upon  all  the  evi- 
dence what  the  character  of  the  insanity  was  in  that  respect.4 
And  wlieie  there  is  evidence  upon  the  issue  of  sanity  it  is  error 
to  instruct  that  the  law  raises  a  presumption  one  way  or  the  other.5 
And  such  presumption  may  be  rebutted  by  proof  of  a  change  of 
mental  condition  or  lucid  interval  at  the  time  of  the  act  which  is- 
called  in  question.6 

These  rules  apply  to  criminal  prosecutions,  and  where  con- 
firmed or  habitual  insanity  is  established  as  distinguished  from 
temporary  or  spasmodic  insanity  the  prosecution  is  bound  to 
prove  that  the  criminal  act  was  committed  during  a  lucid  interval 
or  after  restoration.7     It  devolves  upon  the  state  in  such  cases  to 

Tex.  476;  Fishburne  v.  Ferguson,  84  Va.  87;  Burton  v.  Scott,  3  Band.  399;. 
Den,  Stevens,  v.  Vancleve,  4  Wash.  C.  C.  262;  Jarrett  v.  Jarrett,  11  W. 
Va.  584;  Anderson  v.  Oranmer,  11  W.  Va.  562;  Hoge  v.  Fisher,  Pet.  O.  C. 
163;  Young  v.  Young,  10  Grant,  Ch.  (U.  C.)  365;  Bussell  v.  Lefrancois,  8 
Can.  S.  C.  335;  Attorney  General  v.  Pranther,  3  Bro.  Ch.  441;  Groom  v. 
Thomas,  2  Hagg.  Eccl.  Bep.  433;  Smee  v.  Smee,  L.  B.  5  Prob.  Div.  84, 
28  Week.  Bep.  703,  44  J.  P.  220;  Smith  v.  Tebbitt,  L.  B.  1  Prob.  &  Div. 
401,  36  L.  J.  Prob.  N.  S.  35,  15  L.  T.  N.  S.  594;  Cartwright  v.  Cartwright, 
1  Phillim.  Eccl.  Bep.  90;  Symes  v.  Green,  1  Swab.  &  T.  401;  White  v. 
Driver,  Phillim.  Eccl.  Bep.  81;  White  v.  Wilson,  13  Ves.  Jr.  87;  Nichols 
v.  Binns,  1  Swab.  &  T.  239.  But  see  Fay  v.  Burditt,  81  Ind.  435,  42  Am. 
Bep.  142. 

1  Manley  v.  Staples,  65  Vt.  370;  Missouri  P.  B.  Co.  v.  Brazzil,  72  Tex. 
233. 

2  Fay  v.  Burditt,  81  Ind.  435,  42  Am.  Bep.  142. 

3  Webb  v.  State,  5  Tex.  App.  596. 

4  Manley  v.  Staples,  65  Vt.  370;   Townshend  v.  Townshend,  7  Gill.  10. 

5  Missouri  P.  B.  Co.  v.  Brazzil,  72  Tex.  233;  Manley  v.  Staples,  65  Vt. 
370. 

6  Mullins  v.  Cottrell,  41  Miss.  291;  Snow  v.  Benton,  28  HI.  306;  State  v. 
Spencer,  21  N.  J.  L.  196.  And  see  Armstrong  v.  State,  30  Fla.  170,  17  L. 
B.  A.  484. 

"  People  v.  Montgomery,  13  Abb.  Pr.  N.  S.  207;  State  v.  Johnson,  40 
Conn.  136;  Armstrong  v.  State,  30  Fla.  170,  17  L.  B.  A.  484;  State  v.  Bed- 
dick,  7  Kan.  143;   Ford  v.  State,  73  Miss.  734,  35  L.  E.  A.  117;   State  v. 


iV(l  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

prove  that  the  accused  was  sane  enough  to  know  right  from 
wrong.'  And  it  has  been  held  that  proof  to  rebut  the  presump- 
tion must  be  beyond  a  reasonable  doubt.2  But  where  prior  in- 
sanity is  not  shown  it  is  not  necessary  to  prove  that  the  act  was 
committed  during  a  lucid  interval.3  And  failure  to  instruct  that 
the  burden  rests  with  the  state  to  show  that  the  act  was  done 
during  a  lucid  interval  is  not  error  where  the  evidence  shows 
that  it  the  accused  was  insane  at  any  time  he  continued  so  and 
had  no  such  thing  as  lucid  intervals.4  Xor  is  a  refusal  to  instruct 
with  reference  to  the  presumption  of  continuance  erroneous 
where  there  is  nothing  to  show  whether  there  was  any  evidence 
upon  which  to  base  an  instruction,5  or  where  the  bare  fact  that 
the  defendant  had  been  transferred  from  the  penitentiary  to  the 
insane  hospital  several  years  before  is  the  only  evidence  of  un- 
soundness of  mind." 

So,  the  presumption  of  continuance  applies  to  actions  on  con- 
tracts, and  where  a  party  is  afflicted  with  insanity  of  a  permanent 
nature,  and  insanity  is  alleged  as  a  defense,  he  who  claims  per- 
formance must  prove  that  it  was  entered  into  during  a  lucid 
interval,7  or  that  he  had  recovered  and  was  compos  mentis*  And 
where  general  insanity  on  the  part  of  a  grantor  is  shown  it  is 
presumed  to  continue  to  the  time  of  the  execution  of  the  deed  in 
question ; 9  and  the  burden  of  proving  sanity  rests  with  the  per- 
son offering  it  in  evidence  or  claiming  under  it.10     And  the  same 

Schaefer,  116  Mo.  96;   State  v.  Lowe,  93  Mo.  547;   Com.  v.  Winneniore, 
1  Brewst.  (Pa.  |  356;  Hunt  v.  State,  33  Tex.  Crim.  Rep.  252;  State  v.  Brown, 
Houst.  Crim.  Bep.  (Del.)  539. 
1  State  v.  Lowe,  93  Mo.  547. 

*  State  v.  Reddick,  7  Kan.  143;   Hunt  v.  State,  33  Tex.  Crim.  Rep.  252. 

3  State  v.  Schaefer,  116  Mo.  96. 

4  State  v.  Schaefer,  116  Mo.  96. 
s  People  v.  Smith,  57  Cal.  130. 

•  Langdon  v.  People,  133  HI.  382. 

■>  Emery  v.  Hoyt,  46  HI.  258;  Wade  v.  State,  Nix,  37  Ind.  180. 

8  Russell  v.  Leiram-ois,  8  Can.  S.  C.  353;  Ricketts  v.  Jolliff,  62  Miss.  440, 

9  Rogers  v.  Walker,  6  Pa.  371,  47  Am.  Dec.  470;  Aurentz  v.  Anderson, 
3  Pittsb.  310;  Dicken  v.  Johnson,  7  Ga.  4S4;  Raymond  v.  Wathen,  142 
Ind.  367. 

10  Pike  v.  Pike,  104  Ala.  642;  Dicken  v.  Johnson,  7  Ga.  484;  Ballew  v. 
Clark,  2  Led.   L.   23;   Rogers  v.  Walker,   6  Pa.   371,  47  Am.   Dec,  470; 


EVIDENCE    OF   INSANITY.  481 

rule  applies  to  mortgages.1  And  the  recovery  or  lucid  interval 
must  be  such  as  to  enable  the  grantor  or  mortgagor  to  compre- 
hend intelligently  the  nature  and  character  of  the  transaction  in 
which  he  is  engaged.2 

So,  the  same  doctrine  is  applicable  to  wills,  and  where  perma- 
nent insanity  of  the  testator  is  shown  previous  to  the  making  of  his 
will  its  continuance  is  presumed.3  A  nd  where  he  is  proved  to  have 
been  insane  at  the  date  of  the  execution  of  his  will  it  will  be  pre- 
sumed, until  the  contrary  is  shown,  that  he  continued  in  that  state 
of  mind  and  was  incompetent  at  the  date  of  a  subsequent  altera- 
tion in  his  will.4  Proof  of  previous  insanity  destroys  the  pre- 
sumption in  favor  of  sanity,6  and  casts  the  burden  of  proof  upon 
those  who  support  the  will  to  show  restoration  to  sanity  or  a  lucid 
interval  at  the  time  by  satisfactory  proof.6  And  they  are  entitled 
to  open  and  close,7  and  must  prove  sanity  at  the  very  moment 
the  will  was  made,8  and  that  he  had  memory,  understanding,  and 
judgment  sufficient  to  execute  a  valid  will,9  proof  of  a  lucid  inter- 

Aurentz  v.  Anderson,  3  Pittsb.  310;  Jarrett  v.  Jarrett,  11  W.  Ya.  584; 
Anderson  v.  Cranmer,  11  W.  Va.  562;  Hoge  v.  Fisher,  Pet.  O.  0.  163; 
Toung  v.  Young,  10  Grant,  Ch.  (U.  0.)  365. 

1  Bipley  v.  Babcock,  13  Wis.  425. 

2  Pike  v.  Pike,  104  Ala.  642. 

3  Kinloch  v.  Palmer,  1  Mill.  Const.  215;  Boylan  v.  Meeker,  28  N.  J.  L. 
274.     And  see  Clark  v.  Ellis,  9  Or.  128. 

4  Hawkins  v.  Grimes,  13  B.  Mon.  257. 

5  Turner  v.  Kusk,  53  Md.  65. 

6  O'Donnell  v.  Bodiger,  76  Ala.  222,  52  Am.  Bep.  322;  Cubbage  v.  Cub- 
bage, 1  Harr.  (Del.)  461,  note;  Griffin  v.  Griffin,  B.  M.  Charlt.  217;  Ken- 
worthy  v.  Williams,  5  Ind.  375;  Harrison  v.  Bishop,  131  Ind.  161;  Halley 
v.  Webster,  21  Me.  461;  Turner  v.  Cheesman,  15  N.  J.  Eq.  243;  Goble  v. 
Grant,  3  N.  J.  Eq.  629;  Whitenack  v.  Stryker,  2  N.  J.  Eq.  8;  Clark  v. 
Fisher,  1  Paige,  171,  19  Am.  Dec.  402;  Be  Jones's  Estate,  2  Ohio  Dec.  409; 
Harden  v.  Hays,  9  Pa.  151;  Landis  v.  Landis,  1  Grant,  Cas.  248;  Lee  v. 
Lee,  4  McCord,  L.  183,  17  Am.  Dec.  722;  Vance  v.  Upson,  66  Tex.  476; 
Burton  v.  Scott,  3  Band.  399;  White  v.  Wilson,  13  Ves.  Jr.  87;  White  v. 
Driver,  1  Philhm.  Eccl.  Bep.  84;  Cartwright  v.  Cartwright,  1  Phillim. 
Eccl.  Bep.  90;  Groom  v.  Thomas,  2  Hagg.  Eccl.  Bep.  433;  Taylor  v.  Cress- 
well,  45  Md.  4,22;  Higgins  v.  Carlton,  28  Md.  115,  92  Am.  Dec.  666;  Den, 
.Stevens,  v.  Vancleve,  4  Wash.  C.  C.  262. 

7  Cubbage  v.  Cubbage,  1  Harr.  (Del.)  461,  note. 

8  Jackson,  Van  Dusen,  v.  Van  Dusen,  5  Johns.  144,  4  Am.  Dec.  330. 

9  Landis  v.  Landis,  1  Grant,  Cas.  248. 

31 


•*--  MEDICAL  JURISPRUDENCE   OF   LSSAXTTY. 

val  being  required  to  be  made  to  the  satisfaction  of  the  jury." 
The  rule  in  Massachusetts,  "however,  is  that  proof  of  previous 
insanity  may  make  ont  a  prima  facie  case,  but  the  burden  of 
":■-■:  :•-  :; :  es  :: : :  shif:.J 

So,  the  burden  of  proving  restoration  to  reason,  and  the  disso- 
lution or  abandonment  of  the  guardianship  of  one  who  had  been 
insane,  rests  upon  the  person  seeking  to  enforce  a  contract  against 
which  insanity  is  pleaded.8  But  an  adjudication  of  insanity,  fol- 
lowed by  a  commitment  of  the  patient  to  the  asylum  for  the 
insane,  does  not  create  a  conclusive  presumption  of  the  continu- 
ance of  the  insanity  seven  years  after  the  discharge  of  the  patient 
from  the  asylum.*  And  the  presumption  of  continued  insanity 
of  a  man  adjudged  insane,  who  marries  a  woman  with  whom  he 
lives  for  more  than  thirty  years,  will  not  prevail  against  the  pre- 
sumption of  the  legality  of  the  marriage.* 

|  %.  Temporary  insanity. 
Insanity  which  is  not  shown  to  be  settled  or  general  as  contra- 
distinguished from  mere  temporary  aberration  or  hallucination  is 
not  presumed  to  continue  until  the  contrary  is  shown/  Fitful 
and  exceptional  attacks  of  insanity  are  not  presumed  to  be  con- 
tinuous.7 And  the  existence  of  prior  or  subsequent  lunacy,  ex- 
cept where  it  is  habitual,  does  not  suffice  to  change  the  burden 
of  proof.8  And  where  an  insane  person  has  lucid  intervals 
offenses  committed  by  him  will  be  presumed  to  have  been  com- 
mitted  in  a  lucid  interval  artless  the  contrary  appears.'     The 

;  Yax:-.e  v.  Up>:-,  -:••:  Tex.  ±~e. 

s  Wright  v.  Wrigl:    139  Mam  1"". 

sFJston  v.  Jasper,  45  Tex.  4*  9;   Be  Hooper's  Estate,  174  Pa.  373. 

•  v--j:  L.  IxY  Co.   ~   Wii-^H,  TA  Ksx.  75:.  So  L.  E.  A.  255. 

8  Castor  v.  Davis,  120  Ihd.  231. 

■  I--  ■_'.-  ~  ~::^:>.  -: -  CV_.  L5o;  T:;: :_-:-:  v.  I. -.-.=>.  "i  M:;.  Cr:  ITxrrxree 
v.  Sean,  107  Ala,  424:  MeMasters  v.  Blair,  29  Pa,  298;  Langdon  v.  People, 
133  HL  382. 

'L-eache  v.  State,  22  Tex.  Atr.  279,  58  Am.  Bep.  638;  Ward  t.  State, 
19  Tex.  App.  664;  Ford  v.  S-2>-e.  "1  Ala.  385;  Carpenter  t.  Carpenter,  8 
Bush,  283.  And  see  Weston  v.  Hoggins.  40  Me.  102:  Halley  v.  Webster, 
21  Me.  461;  Puryeax  v.  Reese,  6  Coldw.  21. 

s  Hall  v.  Unger,  2  Abb.  (TJ.  S.)  507;  Dexter  t.  HaT.  82  U.  S.  15  Wall. 
9,  21  L.  ed.  73;  Corbit  v.  Smith,  7  Iowa,  60,  71  An.  Dec.  431. 

s  Ford  t.  Stale,  71  Ala,  385. 


EVIDENCE    OF    INSANITY.  *83 

maxim  "  Once  insane  presumed  always  to  be  insane  "  does  not 
apply  where  the  malady  or  delusion  under  which  the  alleged 
insane  person  labored  was  in  its  nature  accidental  or  temporary,1 
or  the  effect  of  some  sickness  or  disease.2  And  where  insanity 
directly  connected  with  some  violent  disease  is  shown,  the  party 
alleging  it  must  bring  his  proof  of  continued  insanity  to  that 
point  of  time  which  bears  directly  upon  the  subject  in  contro- 
versy.3 Thus,  a  party  seeking  to  avoid  a  contract  by  reason  of 
temporary  insanity  resulting  from  disease  must  show  its  existence 
at  the  time  the  contract  was  made,  and  that  it  was  of  a  charac- 
ter affecting  the  capacity  of  the  party  to  make  it.4  And  the 
mere  fact  of  previous  insanity  upon  the  part  of  a  grantor  does 
not  render  evidence  of  insanity  at  the  time  of  making  a  deed 
unnecessary  where  such  insanity  was  not  habitual.5 

So,  occasional  fits  of  insanity  or  aberration  of  mind  produced 
by  temporary  causes  are  not  sufficient  to  shift  the  burden  of 
proof  in  a  will  contest  to  the  proponent  to  show  that  the  will  was 
made  during  a  lucid  interval.8  And  the  burden  of  proof  upon 
the  contest  of  a  will  made  by  a  person  suffering  from  a  complica- 
tion of  troubles,  who  at  times  suffered  great  pain  and  became 
deranged,  rests  with  the  contestants  to  show  that  the  will  was 
made  while  the  testator  was  suffering  from  one  of  such  temporary 
derangements.7  So,  refusal  to  °cive  a  sufficient  instruction  to  the 
effect  that  the  law  presumes  insanity  to  continue  after  it  is  once 
shown  to  exist  is  not  error  in  a  criminal  prosecution  in  a  case  of 
recurrent  insanity.8  And  where  only  temporary  or  recurrent 
insanity  is  shown  without  raising  any  reasonable  doubt  as  to 

1  Tovmshend  v.  Townsliend,  7  Gill,  10. 

2  Hix  v.  Wkirteraore,  4  Met.  545;  Staples  v.  Wellington,  58  Me.  453; 
Bickardson  v.  Smart,  2  Mo.  App.  Eep.  1107;  Webb  v.  State,  5  Tex.  App. 
596. 

3  O'Donnell  v.  Eodiger,  76  Ala.  222..  52  Am.  Eep.  322;  Blake  v.  Eourke, 
74  Iowa,  519;   Hix  v.  Whittemore,  4  Met.  515. 

4  Staples  t.  Wellington,  58  Me.  153;   Trinibo  v.  Trinibo,  47  Minn.  389. 

5  Aixrentz  v.  Anderson,  3  Pittsb.  310;  Stewart  t.  Flint,  59  Yt.  144. 

6  O'Donnell  v.  Eodiger,  76  Ala.  222,  52  Am.  Eep.  322;  Clark  v.  Ellis,  9 
Or.  12S;   Eeielienbach  v.  Enddacli,  127  Pa.  564. 

"  Blake  v.  Eourke,  74  Iowa,  519. 

5  Leache  v.  State,  22  Tex.  App.  279,  58  Am.  Eep.  638;  Smith  v.  State.  22 
Tex.  App.  316. 


4S4 


MEDICAL    JURISPRUDENCE    OF    INSANITY. 


whether  or  not  it  existed  at  the  time  of  the  commission  of  the  act 
in  question  the  presumption  of  general  sanity  may  be  relied  on 
without  offering  proof  of  a  lucid  interval.1  But  an  instruction 
that  insanity  is  presumed  to  continue  is  not  erroneous  as  an  ab- 
stract proposition  of  law,  and  is  not  subject  to  exception  because 
there  was  no  evidence  upon  which  it  could  be  based,2  or  because 
it  was  unaccompanied  by  any  qualification  with  reference  to  tem- 
porary insanity,  where  no  such  qualification  was  requested, 3  or 
where  the  testimony  does  not  indicate  a  transient  insanity.4 

§  3.  Habitual  and  temporary  insanity  distinguished. 

The  presumption  of  continuance  of  insanity  once  established 
applies  to  cases  of  habitual  or  apparently  confirmed  insanity  of 
whatever  nature,  but  does  not  apply  to  cases  of  occasional  or  tem- 
porary insanity.5  And  in  order  to  raise  a  presumption  of  continu- 
ance it  must  be  of  a  permanent  type  or  of  a  continuing  nature  or 
possessed  of  the  characteristics  of  an  habitual  and  confirmed  dis- 
order of  the  mind.6  And  it  must  appear  to  have  been  of  such 
duration  and  character  as  to  indicate  the  probability  of  its  con- 
tinuance, and  not  simply  the  possibility  or  probability  of  its  recur- 
rence.7 And  there  should  be  some  evidence  tending  to  show 
settled  insanity  as  contradistinguished  from  temporary  aberration 
or  hallucination,  to  justify  an  instruction  which  does  not  recog- 
nize such  a  distinction.8 

Insanity  produced  by  disease  in  which  eventual  recovery  is 
possible  or  probable,  though  necessarily  slow,  is  not  habitual 
insanity  which  will  shift  the  burden  of  proof  to  show  a  lucid 
interval  at  the  time  of  making  a  deed.9  Xor  is  delirium  or  imbe- 
cility resulting  from  violent  or  acute  disease.10     Nor  does  the  pre- 

:  Ford  v.  State,  73  Miss.  734,  35  L.  E.  A.  117. 

2  Weston  v.  Higgins,  40  Me.  102. 

3  Norman,  v.  Georgia  Loan  &  T.  Co.  92  Ga.  295. 

4  Fuhrider  v.  Ingels,  87  Ind.  414. 

5  State  v.  Wilner,  40  Wis.  304;  Corbit  v.  Smith,  7  Iowa,  60,  71  Am.  Dec. 
431. 

6  Langdon  v.  People,  133  El.  382.     And  see  Stewart  v.  Kedditt,  3  Md.  67. 
'  People  t.  Schniitt,  106  Cal.  48;   Langdon  v.  People,  133  El.  382. 

*  People  v.  Francis,  38  Cal.  183. 

9  Turner  v.  Rusk,  53  Md.  65. 

10  Clarke  v.  Sawyer,  3  Sandf.  Ch.  351. 


EVIDENCE    OF    INSANITY.  485 

sumption  of  the  continuance  of  the  incapacity  once  established 
apply  to  insanity  induced  by  epilepsy,  where  the  paroxysms  are 
periodical.1  And  insanity  of  one  who  is  rendered  entirely  uncon- 
scious and  of  unsound  mind  and  memory  by  a  stroke  of  paralysis 
is  not  presumed  to  continue  for  four  months  thereafter  so  as  to 
invalidate  a  deed  then  made.2  And  where  a  testator  labored  for 
four  or  five  months  under  a  severe  attack  of  apoplexy,  suffering 
the  deprivation  of  reason  at  the  outset,  which  was  gradually  re- 
stored on  recovery,  he  is  not  to  be  deemed  generally  insane  where  he 
survives  four  years  thereafter  without  an  intervening  attack.3  So, 
bare  proof  of  mental  unsoundness  a  few  years  after  the  execution 
of  the  will  without  regard  to  its  nature  and  character,  whether 
permanent  or  temporary,  is  not  sufficient  to  rebut  the  presump- 
tion in  favor  of  sanity.4  And  proof  that  on  the  day  a  will  was 
signed  the  testatrix  was  flighty  but  knew  what  she  was  doing  a 
part  of  the  time  is  not  sufficient  to  cast  on  the  proponent  the  bur- 
den of  showing  that  she  was  sane  at  the  particular  moment  the 
will  was  made.5  And  the  question  whether  a  testator  who  exe- 
cuted a  will  in  the  afternoon  and  was  proved  to  have  been 
wholly  unconscious  in  the  morning  could  have  recovered  posses- 
sion of  his  mental  faculties  so  as  to  enable  him  to  make  a  valid 
will  is  one  for  the  jury  under  the  evidence.6 

The  presumption  of  continuance  of  an  insane  condition,  how- 
ever, applies  to  periodical  lunacy  as  well  as  to  habitual  or  perma- 
nent derangement.7  And  occasional  incapacity  of  a  testator 
arising  from  nervous  attacks,  their  effect  being  of  different  dura- 
tion, during  which  he  is  incapable  of  any  rational  act,  renders  his 
capacity  conflicting,  and  imposes  upon  the  party  claiming  under 
his  will  the  obligation  of  proving  that  the  will  was  made  during 
capacity.8  And  the  insane  condition  of  a  person  subject  to  occa- 
sional and  temporary  attacks  of  insanity,  one  of  which  visited 

1  Carpenter  v.  Carpenter,  8  Bush,  283;   Brown  v.  Biggin,  94  HI.  560. 

2  Trish  v.  Newell,  62  HL  196. 

3  Clarke  v.  Sawyer,  3  Sandf.  Ch.  351. 

4  Taylor  v.  Creswell,  45  Md.  422. 

6  O'Donnell  v.  Bodiger,  76  Ala.  222,  52  Am.  Bep.  322. 

6  Be  Heenan's  Estate,  15  Phila.  545. 

1  Overall  v.  State,  15  Lea,  672.     And  see  Thompson  v.  Kyner,  65  Pa.  368. 

8  Kinleside  v.  Harrison,  2  Philliru.  Eccl.  Bep.  449. 


486 


MEDICAL   JURISPRUDENCE    OF    INSANITY. 


him  shortly  before  the  commission  of  a  criminal  act,  will  be 
presumed  to  have  continued  where  recovery  is  not  shown.1  So, 
delusions  or  unsoundness  of  mind  once  proved  are  presumed  to 
exist  although  not  at  all  times  and  under  all  circumstances  equally 
apparent.2  And  the  burden  of  proof  that  a  testator  who  had  been 
subject  to  delusions  was  free  from  them  at  the  time  of  making  his 
will  rests  with  those  who  assert  that  he  was  of  sound  and  dispos- 
ing mind.3  Where  insanity  once  existed  in  the  shape  of  delusions 
the  absence  of  the  delusions  is  the  test  of  restoration,  and  where 
the  evidence  in  a  will  contest  fails  to  show  the  application  of 
such  test  the  will  may  be  pronounced  against  on  the  ground  of 
failure  of  proof.4  But  where  there  is  proof  of  general  rationality, 
and  also  of  delusions,  the  .court  will  not  assume  that  the  delusion 
was  habitual.6  And  proof  of  a  delusion  on  the  part  of  a  party  to 
a  contract  that  his  lands  were  wearing  out,  and  that  his  planta- 
tion was  going  to  ruin,  and  that  he  was  threatened  with  starva- 
tion, does  not  show  such  a  state  of  lunacy  as  will  throw  the  bur- 
den of  showing  a  lucid  interval  upon  the  other  party.6 

So,  insanity  founded  upon  an  inquisition  of  lunacy  or  a  judicial 
determination  is  presumed  to  continue,  and  the  burden  of  proof 
rests  with  those  asserting  restoration  or  a  lucid  interval  to  show  it.7 
But  where  the  insanity  of  a  person  accused  of  crime  has  been 
established  by  the  fact  of  his  commitment  to  a  lunatic  asylum  it 
cannot  be  said,  as  matter  of  law,  that  it  is  presumed  to  continue 
to  exist  until  overthrown  by  proof  of  a  final  discharge ;  such  pre- 
sumption may  be  rebutted  by  any  satisfactory  evidence  of  resto- 

1  Overall  v.  State,  15  Lea,  672. 

2  Fowlis  v.  Davidson,  6  Notes  of  Oases,  461. 

3  Boughton  v.  Knight,  28  L.  T.  N.  S.  562,  L.  E.  3  Prob.  &  Div.  64,  42 
L.  J.  Prob.  N.  S.  41;  Smee  v.  Smee,  L.  E.  5  Prob.  Div.  84,  28  Week.  Eep. 
703,  44  J.  P.  220;  Waring  v.  Waring,  12  Jur.  947;  Jenckes  v.  Smithfield 
Court  of  Probate,  2  E.  I.  255. 

4  Grimani  v.  Draper,  12  Jur.  925. 

6  Townshend  v.  Townshend,  7  Gill,  10. 

6  Gillespie  v.  Scbuliberrier,  5  Jones,  L.  157.  And  see  Staples  v.  Wel- 
lington, 58  Me.  453;  Townsbend  v.  Townsbend,  7  Gill,  10. 

'  Terry  v.  Buffington,  11  Ga.  337,  56  Am.  Dec.  423;  Harrison  v.  Bisbop, 
131  Ind.  161;  Lilly  v.  Waggoner,  27  El.  395;  Haynes  v.  Swanu,  6  Heisk. 
560;  Prinsep  v.  Dyce  Sombre,  10  Moore,  P.  O.  232.  And  see  Leckey  v. 
Cunningbam,  56  Pa.  370. 


EVIDENCE    OF   INSANITY..  487 

MnL,A^-the/reBUmVii0n  °f  C°ntinUed  insanit^  of  *  ™r- 
ned  man  arising  from  an  adjudication  thereof,  is  overcome  by 

in  anotT       ,    "  t^f  *"  ^  and  resid*d  *»  several  years 
cured  ad'  "  ^  ^  C°nSidered  Sane>  and  where  ^  Pro- 

finement  of 0rCG  Z  ^^  hj  Publication-*     ^or  does  the  con- 
Unement  of  a  man.  ten  years  before  in  an  insane  asylum  create  a 

m^nZ  Tl^i1^118^  StiU  C°ntinUes  W]'~h     S- 
ment  was  followed  by  at  least  eight  years  of  successful  practice 

-as  a  physician.3  So,  no  presumption  of  absolute  recovery  arises 
from  lapse  of  time  alone  ;  something  more  is  required  to'reliev 
the  person  asserting  it  of  the  burden  of  proof/  But  insanity 
once  esta Wished  will  not  be  presumed  to  continue  where >%X 
a  period  has  elapsed  between  the  proved  insanity  and  the  date  of 
he  subsequent  inquiry/  And  the  fact  that  insanity  had  con- 
t  nued  for  a  number  of  years  would  be  strong,  though  not  con 
elusive,  evidence  of  permanence.6  g 

There  is  no  presumption,  either  of  law  or  of  fact,  of  recovery 

IT  /e!SS/CCOmpanied  b^and  Probably  resulting 
from  the  infirmities  of  old  age/  But  where  a  will  is  made 
upon  a  death  bed  shortly  before  death,  and  stupor  from  drugs  or 
delirium  is  shown,  there  is  no  presumption  that  it  was  made 
during  a  lucid  interval,  though  such  intervals  are  shown  to  have 

a  wi 1  /f  thG  bUrden  °f  Pr°°f  reStS  With  the  P-P-ents  of 
■a  will  made  by  a  testator  afflicted  with  senile  dementia  to  show 
that  at  the  very  time  of  its  execution  he  was  of  sound  mind  •  So 
insanity  through  intemperance  is  of  a  temporary  nature,  and  fol- 
lowed not  simply  by  a  lucid  interval,  but  by  permanent  restora- 
tion of  reason,  and  to  such  insanity  the  presumption  of  continu- 
ance does  not  apply.-     And  delirium  tremens  brought  on  by  one's 

1  State  v.  Davis,  27  S.  C.  609. 

2  Rodgers  v.  Rodgers,  56  Kan.  483. 

3  Langdon  v.  People,  133  111.  382. 

4  Norton  v.  New  York  Hospital,  3  Abb.  N.  C.  229, 

5  Langdon  v.  People,  133  111.  382. 

6  Manley  v.  Staples,  65  Vt.  370. 

7  Physio-Medical  College  v.  Wilkinson,  108  Ind  314 

8  Em°tt  v.  Welby,  13  Mo.  App.  19. 

9  Bever  v.  Spangler,  93  Iowa,  576. 

»  Dnffield  v.  Robeson,  2  Harr.  (Del.)  379;   Re  Lee,  46  N    J    En    193- 
'Coble  v.  Grant,  3  N.  J.  Ec,  629;  Kahl  v.  Schober,  35  N.  J.  Eq .  i?b2 


488  MEDICAL    JURISPRUDENCE    OF   INSANITY. 

own  procurement  and  passing  away  with  the  removal  of  its  excit- 
ing cause  is  not  presumed  to  continue.1  And  where  it  is  set  up 
as  a  defense  in  a  criminal  prosecution  the  existence  of  a  paroxysm 
of  a  disorder  at  the  very  time  the  criminal  act  was  done  must  bo 
established.2  But  when  alcoholism  has  produced  permanent  de- 
rangement it  is  presumed  to  continue,  and  proof  of  a  lucid  inter- 
val is  necessary  to  give  validity  to  subsequent  acts.3  And  evi- 
dence of  a  mere  sober  interval  of  a  few  hours  or  days  is  not 
sufficient  to  sustain  a  contract  made  by  one  who  had  been  subject 
to  fits  of  delirium  tremens  for  nearly  four  years,  and  was  in  the 
habit  of  daily  drunkenness,  and  had  become  foolish  and  cross 
when  drinking.4  So,  the  incapacity  arising  from  the  use  of  mor- 
phine by  one  who  did  not  have  the  habit  fixed  upon  him  would 
be  but  temporary,  and  there  is  no  presumption  in  favor  of  a  con- 
tinuance of  such  incapacity.6 

§  4.  Presumption  of  continuance  of  a  lucid  interval. 

A  lucid  interval  is  in  its  nature  temporary  and  uncertain  in  its 
duration,  and  there  is  no  legal  presumption  of  its  continuance.* 
And  the  fact  that  a  testator  proved  to  be  insane  had  lucid  inter- 
vals on  the  morning  of  the  execution  of  his  will  does  not  shift 
the  burden  of  proof  to  the  contestant  to  show  that  he  was  not  in 
a  lucid  state  when  he  executed  the  instrument.7  And  delusion 
or  unsoundness  of  mind  proved  to  have  existed  both  before  and 
after  a  designated  period  will  be  presumed  to  have  existed  at  that 
time  unless  it  satisfactorily  appears  that  the  party  had  entirely 
recovered  and  had  not  afterwards  suffered  a  relapse.8  It  has 
been  held,  however,  that  where  a  lucid  interval  is  established 

ner  v.  Gardner,  22  Wend.  526,  34  Am.  Dec.  340;  Black  v.  Ellis,  3  Hill,  L. 
68;  Bannister  v.  Jackson,  45  N.  J.  Eq.  702;  Elkinton  v.  Brick,  44  N.  J. 
Eq.  154,  1  L.  E.  A.  161;  Andress  v.  Weller,  3  N.  J.  Eq.  604. 

1  State  v.  Potts,  100  N.  C.  457;  Goodwin  v.  State,  96  Ind.  550. 

2  State  v.  Sewell,  3  Jones,  L.  245;  Goodwin  v.  State,  96  Ind.  550. 

3  Gardner  v.  Gardner,  22  Wend.  526,  34  Am.  Dec.  340;  State  v.  Potts, 
100  N.  C.  457;  Be  Cockran's  Will,  1  T.  B.  Mon.  264,  15  Am.  Dec.  116. 

4  Menkins  v.  Liglitner,  18  HI.  282. 

5  Camp  v.  Shaw,  52  El.  App.  241. 

6  Pike  v.  Pike,  104  Ala.  642. 

1  Saxon  v.  Whittaker,  30  Ala.  237. 

-  Fowlis  v.  Davidson,  6  Notes  of  Cases,  461. 


EVIDENCE   OF    INSANITY.  4S0 

upon  the  part  of  a  grantor  who  was  previously  insane  a  short 
time  before  the  execution  of  his  deed  the  burden  is  thereby 
placed  upon  the  party  claiming  insanity  to  show  that  he  had 
again  become  insane  at  the  time  of  its  execution.1  And  the  fact 
that  a  testator  had  been  insane  some  years  prior  to  the  execution 
of  his  will  creates  no  presumption  of  insanity  at  that  time, — 
especially  where  it  appears  that  he  subsequently  became  lucid 
and  continued  so  until  the  time  of  his  death.  aAnd  when  a  will 
is  proved  to  have  been  made  by  the  testator  himself  unaided  by 
others,  and  its  provisions  are  wise  and  judicious,  a  presumption  is 
established,  even  in  case  of  a  person  habitually  insane,  that  it  was 
made  during  a  lucid  interval,  which  imposes  upon  those  who 
attack  it  the  burden  of  proving  insanity  at  the  moment  it  was 
made.3 

TV.  Competency  and  admissibility. 

§  1.  Previous  and  subsequent  condition  of  mind. 

Evidence  of  the  state  of  mind  of  a  person  accused  of  crime  be- 
fore and  after  the  commission  of  the  act  is  admissible  where 
insanity  is  alleged  as  a  defense,  as  tending  to  show  his  mental 
condition  at  the  time,4  and  may  be  given  under  a  plea  of  not 
guilty.5  The  mental  condition  of  a  person  accused  of  murder  for 
at  least  a  month  before  the  act  is  a  part  of  the  history  of  the  case 
which  may  be  taken  into  account  in  considering  his  mental  con- 
dition at  the  time.6  And  the  general  character  of  the  accused 
for  weeks  previous  to  the  alleged  commission  of  a  larceny  is  ad- 

1  Wright  v.  Jackson,  59  Wis.  569. 
*  Snow  v.  Benton,  28  IU.  306. 

3  Kingsbury  v.  Whitaker,  32  La.  Ann.  1055,  36  Am.  Rep.  278;  Re  Bey's 
Succession,  46  La.  Ann.  773,  24  L.  R.  A.  577. 

4  McAllister  v.  State,  17  Ala.  434,  52  Am.  Dec.  180;  McLean  v.  State,  16 
Ala.  672;  People  v.  Lee  Fook,  85  Cal.  300;  People  v.  Farrell,  31  Cal.  576; 
Carr  v.  State,  96  Ga.  281;  State  v.  Jones,  64  Iowa,  356;  State  v.  Felter,  25 
Iowa,  67;  Moore  v.  Com.  92  Ky.  630;  Montgomery  v.  Com.  88  Ky.  509; 
State  v.  Kelley,  57  N.  H.  549;  Russell  v.  State,  53  Miss.  367;  People  v. 
Whedon,  2  N.  Y.  Crim.  Rep.  318;  Wilkinson  v.  Pearson,  23  Pa.  117;  Burk- 
hardt  v.  State,  18  Tex.  App.  599;  Warren  v.  State,  9  Tex.  App.  619. 

6  People  v.  Farrell,  31  Cal.  576;  Carr  v.  State,  96  Ga.  284. 
6  State  v.  Harragan,  9  Houst.  (Del.)  369. 


490  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

missible  where  the  testimony  is  not  of  a  conflicting  character  as 
tending  to  show  his  honesty  and  the  general  condition  of  his 
mind.'  So,  the  superintendent  of  an  asylum  to  which  a  person 
accused  of  crime  who  pleads  insanity  is  sent  may  testify  upon  a 
subsequent  trial  for  the  offense  as  to  his  condition  while  in  the 
asylum,  and  as  to  whether  he  had  recovered  his  sanity  sufficiently 
to  be  tried.3  And  evidence  of  the  acts  and  conduct  of  the  com- 
plainant in  a  criminal  prosecution,  who  is  called  as  a  witness  and 
claimed  to  have  been  insane,  bearing  upon  his  mental  condition 
prior  to  the  date  of  the  alleged  offense,  is  admissible  as  tending 
to  show  his  sanity  at  that  time.3  Previous  and  subsequent  men- 
tal condition,  however,  is  competent  only  as  tending  to  throw 
light  on  the  condition  of  the  mind  of  the  accused  at  the  time  of 
the  commission  of  the  crime.4  And  evidence  of  the  acts,  con- 
duct, and  habits  of  the  accused  at  a  subsequent  time  are  only 
admissible  upon  the  ground  that  they  are  so  connected  with  or 
correspond  with  evidence  of  destroyed  or  weakened  mental  con- 
dition preceding  the  offense  as  to  strengthen  the  inference  of 
continuance,  and  carry  it  beyond  the  time  to  which  the  inquiry 
relates,5  and  is  not  to  be  admitted  unless  followed  up  by  proof  of 
facts  tending  to  show  the  accused  was  insane  or  deranged  at  the 
time  of  the  offense  ;6  though  it  may  be  given  without  first  prov- 
ing insanity  at  the  time  of  the  commission  of  the  act.7  The  in- 
terval of  time  within  which  the  acts,  conduct,  and  habits  of  a 
person  accused  of  crime  can  be  reviewed  as  bearing  upon  the 
question  of  his  sanity  at  the  time  of  the  commission  of  the  act  is 
to  be  measured  with  reference  to  the  intervening  evidence.8  And 
evidence  of  character  and  conduct  prior  to  a  certain  date  is  prop- 
erly rejected  where  the  claim  is  made  that  the  insanity  com- 
menced at  that  time.*     Nor  can  the  opinion  of  witnesses  as  to 

1  Johnson  v.  State,  1  Tex.  App.  146. 
!  State  v.  Pritchett,  106  N.  C.  667. 

3  State  v.  Kelley,  57  N.  H.  549. 

4  State  v.  Martin  (N.  J.)  3  Crim.  Law  Mag.  44;   State  v.  Hays,  22  La. 
Ann.  39;  People  v.  Clendennin,  91  Cal.  35. 

5  Com.  v.  Pomeroy,  117  Mass.  143;  State  v.  Lewis,  20  Nev.  333. 

6  Spencer  v.  State,  69  Md.  28. 

7  Yance  v.  Com.  2  Va.  Cas.  132. 

8  Com.  v.  Pomeroy,  117  Mass.  143. 

9  Webber  v.  Com.  119  Pa.  223. 


EVIDENCE    OF    INSANITY.  491 

what  was  undue  and  unnatural  excitement  in  time  of  battle  afford 
ground  for  a  conclusion  as  to  the  mental  condition  of  the  party 
years  afterwards,  unless  it  appears  that  the  excitement  mastered 
the  intellect  and  deprived  the  party  of  accountability.1 

So,  evidence  of  the  state  of  mind  of  the  party  to  a  contract 
both  before  and  after  the  time  it  is  made  is  admissible  to  show 
his  sanity  or  insanity  at  that  time,2  or  to  show  that  the  other 
party  had  notice  of  such  insanity.3  And  evidence  of  the  inca- 
pacity of  a  payee  when  a  note  was  given  him  is  admissible  as 
tending  to  prove  his  incapacity  to  make  a  valid  transfer  at  the 
time  when  he  subsequently  indorsed  it."  So,  evidence  tending 
to  prove  the  sanity  or  insanity  of  a  grantor  previous  or  subse- 
quent to  the  execution  of  a  deed  is  admissible  in  an  action  to  set 
it  aside  as  tending  to  show  his  mental  condition  at  the  time  it 
was  made.6  But  no  absolute  rule  as  to  the  duration  of  the  period 
within  which  such  inquiry  may  be  made,  to  be  universally  ap- 
plied, can  be  laid  down.6  Where  evidence  of  previous  insanity 
is  given  the  same  witnesses  may  testify  as  to  the  state  of  the 
party's  mind  subsequent  to  the  act  in  question,  and  that  the  in- 
sanity was  continuing  and  permanent  in  its  character  ;7  and  his 
appearance  may  be  noted  at  the  trial  when  he  does  not  appear  to 
have  changed  since  the  act.8  And  evidence  as  to  previous  insan- 
ity may  be  rebutted  by  proof  as  to  the  subsequent  condition  of 
the  party."  So,  evidence  of  the  sanity  or  insanity  of  a  testator 
both  before  and  after  the  date  of  his  will  is  admissible,  in  a  pro- 
ceeding to  contest  the  will,  to  show  his  mental  condition  at  the 

1  People  v.  Garbutt,  17  Mich.  9,  97  Am.  Dec.  162. 

5  Grant  v.  Thompson,  4  Conn.  203;  Clinton  v.  Estes,  20  Ark.  216;  Walker 
v.  Clay,  21  Ala.  797;  Beavan  v.  M'Donell,  26  Eng.  L.  &  Eq.  540. 

3  Beavan  v.  M'Donell,  26  Eng.  L.  &  Eq.  540. 

4  Peaslee  v.  Bobbins,  3  Met.  164. 

5  Nichol  v.  Thomas,  53  Ind.  42;  Ashcraft  v.  De  Armond,  44  Iowa,  229; 
"Wilkinson  v.  Pearson,  23  Pa.  117. 

6  Clinton  v.  Estes,  20  Ark.  216.  And  see  White  v.  Graves,  107  Mass. 
325,  9  Am.  Bep.  38. 

1  Jerry  v.  Townshend,  9  Md.  145. 

8  Koile  v.  Ellis,  16  Ind.  301. 

9  Walker  v.  Clay,  21  Ala.  797. 


4:92  MEDICAL   JURISPRUDENCE   OF    INSANITY. 

time  it  was  made,1  great  latitude  being  allowed  in  will  cases.* 
Thus,  evidence  that  the  testator  was  fully  cognizant  of  the 
amount  of  his  property  at  a  designated  time  is  admissible  as  tend- 
ing to  show  that  he  had  the  same  knowledge  a  few  months  later, 
when  he  executed  his  will.3  And  evidence  of  his  state  of  mind 
on  the  day  previous  is  admissible,  and  where  the  will  was  made 
to  supply  the  place  of  one  executed  on  a  previous  day,  which 
had  been  lost,  it  is  part  of  the  res  gestce.*  So,  where  unsound- 
ness of  mind  is  proved  to  exist  on  the  day  the  will  is  made  or  the 
instructions  are  given  it  is  permissible  to  trace  it  both  before  and 
after  that  time  up  to  the  time  of  the  testator's  death.5  And 
where  senilit}7  is  alleged  it  is  competent  to  show  that,  subsequent 
to  the  date  of  the  will,  the  testator's  mind  was  free  from  every 
appearance  of  imbecility.6  ]Nor  will  permitting  a  witness  to  state 
negatively  that  he  did  not  observe  anything  peculiar  about  the 
mental  condition  of  the  testator  at  a  time  other  than  that  when 
the  will  was  executed  furnish  sufficient  ground  for  an  exception/ 
And  witnesses  with  opportunities  for  observing  may  testify 
as  to  changes  in  the  conduct  and  appearance  of  the  testator  as 
determined  by  observation  made  both  before  and  after  a  desig- 
nated date,  where  the  question  was  one  as  to  mental  unsoundness 
beginning  at  a  certain  date  indicated  by  changes  in  appearance 
and  conduct,8  the  remoteness  of  the  facts  testified  to  going  to  the 
effect  or  weight  or  importance  to  be  attached  to  the  evidence, 

1  Knox  v.  Knox,  95  Ala.  495;  Kramer  v.  Weinert,  81  Ala.  414;  Moore  v. 
Spier,  80  Ala.  129;  Tobin  v.  Jenkins,  29  Ark.  151;  Ee  Toomes's  Estate,  54 
Cal.  516;  Dale's  Appeal,  57  Conn.  127;  Terry  v.  Buffington,  11  Ga.  337,  56 
Am.  Dec.  423;  Staser  v.  Hogan,  120  Ind.  227;  Colvin  v.  Warford,  20  Md. 
357;  Davis  v.  Calvert,  5  Gill  &  J.  269;  Conely  v.  McDonald,  40  Mich.  150; 
Turner  v.  Cheesman,  15  N.  J.  Eq.  243;  Whitenack  v.  Stryker,  2  N.  J.  Eq. 
8;  Swails  v.  White,  149  Pa.  261;  Philadelphia  Trust  &  S.  D.  Co.  v.  Drink- 
house,  17  Phila.  23;  Ford  v.  Ford,  7  Humph.  92;  Kerr  v.  Lunsford,  31  W. 
Ya.  680,  2  L.  E.  A.  668;  Stevens  v.  Yancleve,  4  Wash.  C.  C.  262. 

2  Eobinson  v.  Adams,  62  Me.  369,  16  Am.  Eep.  473. 

3  Carpenter  v.  Hatch,  64  N.  H.  573. 

4  Dyer  v.  Dyer,  87  Ind.  13. 

6  Pidcock  v.  Potter,  68  Pa.  348,  8  Am.  Eep.  181. 
6  Moore  v.  Spier,  80  Ala.  129. 

'  Eobinson  v.  Adams,  62  Me.  369,  16  Am.  Eep.  473. 
8  Shanley's  Appeal,  62  Conn.  325. 


EVIDENCE    OF   INSANITY.  493 

rather  than  to  its  admissibility.1  Unless  it  appears  that  the  facts 
testified  to  were  of  such  a  nature  as  to  show  incompetency  at 
the  time  of  the  will,  however,  the  evidence  amounts  to  nothing.3 
And  where  the  testator  is  found  to  be  possessed  of  a  sound  and 
-disposing  mind  and  memory  at  the  time  his  will  was  made  his 
previous  and  subsequent  condition  is  not  to  be  considered.3 
It  is  not  admissible  as  an  independent  fact,  in  the  absence  of  evi- 
dence as  to  the  mental  condition  of  the  testator  at  the  time  of 
making  the  will,4  and  is  only  important  as  it  throws  light  upon 
the  actual  condition  of  his  mind  at  that  time  ;B  and  is  not  admissi- 
ble where  it  refers  to  the  condition  of  mind  long  afterwards,  and 
does  not  tend  to  show  such  unsoundness  of  mind  as  would  inval- 
idate a  will.6 

So,  evidence  of  the  insanity  of  a  party  about  twenty  years  be- 
fore taking  out  an  insurance  policy  is  not  admissible  in  an  action 
on  the  policy  as  tending  to  show  a  false  representation  in  procur- 
ing it,  or  to  show  his  insanity  at  the  time  of  a  subsequent  suicide, 
in  the  absence  of  evidence  tending  to  show  insanity  at  the  time 
the  policy  was  issued.7  But  testimony  taken  by  interrogatories 
ten  years  before  in  a  former  trial  of  the  same  case  is  admissible 
in  an  action  brought  for  the  discharge  of  a  trustee  which  is  de- 
fended upon  the  ground  of  insanity  as  tending  to  prove  a  perma- 
nent unsoundness  of  mind  which  might  have  continued  to  the 
time  of  the  trial.8  And  evidence  in  an  action  for  slander  that 
the  defendant  was  weak-minded,  and  at  times  both  before  and 

1  Conely  v.  McDonald,  40  Mich.  150.  And  see  Boss  v.  McQuiston,  45 
Iowa,  145;  Eobinson  v.  Adams,  62  Me.  369,  16  Am.  Eep.  473;  Fairchild  v. 
Bascomb,  35  Vt.  398. 

'2  Stevens  v.  Vancleve,  4  Wash.  C.  0.  262.  And  see  Choice  v.  State,  31 
Ga.  424;  Com.  v.  Pomeroy,  117  Mass.  143. 

3  Grubbs  v.  McDonald,  91  Pa.  236;  Dimond's  Estate,  3  Pa.  Dist.  E.  554. 

4  Terry  v.  Buffington,  11  Ga.  337.  And  see  Bowden  v.  People,  12  Hun, 
85. 

6  Chrisman  v.  Chrisman,  16  Or.  127;  Philadelphia  Trust  &  S.  D.  Co.  v. 
Drinkhouse,  17  Phila.  23.     And  see  Ashcraft  v.  De  Armond,  44  Iowa,  229. 

8  Dickie  v.  Carter,  42  111.  376;  Pavey  v.  Wintrode,  87  Ind.  379;  Kenwor- 
thy  v.  Williams,  5  Ind.  375. 

7  Blackstone  v.  Standard  Life  &  A.  Ins.  Co.  74  Mich.  592,  3  L.  E.  A. 
486. 

8  Obear  v.  Gray,  73  Ga.  455. 


4:94  MEDICAL    JUBISPJRUDENCE    OF    INSANITY. 

after  speaking  the  slanderous  words  was  totally  deranged,  is  com- 
petent to  be  considered  on  the  question  of  his  insanity  at  that 
time,1  though  it  has  been  said  that  the  period  of  remoteness  should 
not  be  extended  further  than  for  several  months.2 

It  must  be  left  to  the  presiding  judge  to  determine  upon  the 
facts  before  him  how  far  subsequent  acts  have  a  tendency  to 
throw  light  upon  the  actual  condition  of  the  mind  at  the  date  of 
the  act  in  question.3  And  evidence  of  the  condition  of  the 
party's  mind  a  year  afterwards  may  be  excluded,  in  the  discretion 
of  the  trial  judge,  as  too  remote.4  Nor  can  it  be  said  that  such 
discretion  is  erroneously  exercised  in  excluding  evidence  of  the 
mental  condition  of  a  person  making  'an  assignment  which  is 
sought  to  be  invalidated  eight  months  or  more  after  the  assign- 
ment, and  after  the  person  had  been  sent  to  the  lunatic  asylum.5 

But  testimony  in  a  will  contest  covering  a  connected  period  of 
six  years  after  the  execution  of  the  will  is  not  too  remote  where 
it  is  claimed  that  the  testator  was  afflicted  with  senile  dementia,, 
which,  if  existing  at  all,  must  of  necessity  be  of  long  standing 
and  progressive.6  And  evidence  of  subsequent  capacity  is  admis- 
sible without  regard  to  length  of  time,  where  the  claim  is  weak- 
ness and  imbecility  from  great  age,  and  evidence  of  incapacity 
would  be  confined  to  a  reasonable  time  after  the  making  of  the 
will.7  It  is  for  the  party  offering  evidence  of  subsequent  conduct 
and  habits  as  tending  to  show  the  mental  condition  of  the  party 
at  the  time  to  show  their  competency  as  against  the  objection 
that  they  are  subsequent  in  point  of  time,  and  that  it  is  his  own 
conduct  offered  in  his  favor.8  The  weight  of  evidence  of  sub- 
sequent acts  with  reference  to  the  length  of  time  elapsing,  how- 
ever, is  for  the  determination  of  the  jury.9 

1  Bryant  v.  Jackson,  6  Humph.  199;  Dickinson  v.  Barber,  9  Mass.  225,  6 
Am.  Dec.  58. 

2  Dickinson  v.  Barber,  9  Mass.  225,  6  Am.  Dec.  58. 
s  Shailer  v.  Bumstead,  99  Mass.  112. 

4  White  v.  Graves,  107  Mass.  325,  9  Am.  Bep.  38. 

5  Wright  v.  Wright,  139  Mass.  177. 

6  Bever  v.  Spangler,  93  Iowa,  576.     And  see  Ashcraft  v.  De  Arraond,  44 
Iowa,  229. 

7  He  Pinney's  Will,  27  Minn.  280. 

8  Com.  v.  Pomeroy,  117  Mass.  143. 
8  Dale's  Appeal,  57  Conn.  127. 


EVIDENCE   OF    INSANITY.  495 

The  condition  of  the  mind  of  a  testator  after  the  making  0f 
his  will  is  irrelevant  and  inadmissible  in  a  proceeding  to  contest 
it,  where  the  provisions  depend  for  their  operation  upon  the  non- 
happening  of  events  which  come  to  pass.1 

§  2.  The  act  itself. 
In  criminal  law  the  act  committed  and  its  nature  are  not  ad- 
mitted as  evidence  on  the  question  of  the  sanity  or  insanity  of 
the  perpetrator.2  Where  a  will  is  offered  for  probate,  however, 
it  should  be  considered  in  connection  with  the  other  evidence  in 
the  case  for  the  purpose  of  ascertaining  whether  the  testator  had 
testamentary  capacity  at  the  time  of  its  execution.3  And  evi- 
dence tending  to  prove  the  unnatural  character  of  a  will  is  admis- 
sible upon  the  question  of  testamentary  capacity.4  So,  consist- 
ency of  a  will  with  the  natural  inclinations  and  previously  de- 
clared intentions  of  the  testator  is  admissible  in  a  will  contest 
upon  the  issue  of  testamentary  capacity.5  And  evidence  tending 
to  show  that  the  legatees  were  all  strangers  to  the  testator  is  com- 
petent, as  it  is  open  to  the  contestants  to  argue  that  legacies  to 
strangers  indicate  an  unbalanced  mind.6  And  evidence, "where  a 
bequest  to  a  stranger  is  claimed  to  be  unnatural,  as  to  the  way 
in  which  the  wife  of  the  legatee  cared  for  the  testator,  is  admis- 
sible.7 

The  exclusion  of  a  certified  copy  of  a  record  in  a  suit  in  equity, 
and  the  report  of  the  master  therein  fixing  the  amount  of  inter- 
est of  the  son  in  a  partnership  with  his  father  in  a  contest  of  the 
father's  will,  in  which  it  is  claimed  that  the  son  had  transferred 
his  share  in  the  firm  to  his  father  for  the  purpose  of  facilitating 
the  settlement,  with  the  understanding  that  he  would  have  all  his 

1  Magee  v.  McNeil,  41  Miss.  17,  90  Am.  Dec.  354. 

2  See  Beasley  v.  State,  50  Ala.  149,  20  Am.  Eep.  292;  State  v.  Stark,  1 
Strobh.  L.  479;  Laros  v.  Com.  84  Pa.  200;  Com.  v.  Mosler,  4  Pa.  264 

3  Vance  v.  Upson,  66  Tex.  476;  Whitman  v.  Morey,  63  N.'  H.  448-  Tobin 
v.  Jenkins,  29  Ark.  151;  Bougkton  v.  Knight,  L.  K.  3  Prob.  &  Div.  64. 
And  see  Summers  v.  Copeland,  125  Ind.  466. 

4  Roberts  v.  Trawick,  13  Ala.  68;  Stubbs  v.  Houston,  33  Ala.  555-  New- 
comb  v.  Newcomb,  96  Ky.  120;  Barker  v.  Comins,  110  Mass.  477. 

5  Hammond  v.  Dike,  42  Minn.  273;  Moore  v.  Moore,  2  Bradf  265-  Fitz- 
gerald v.  Shelton,  95  N.  C.  519. 

6  Carpenter  v.  Hatch,  64  N.  H.  573. 
'  Denning  v.  Butcher,  91  Iowa,  425. 


496  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

fathers  estate  upon  his  death,  offered  for  the  purpose  of  showing 
that  the  will  was  unreasonable,  as  a  ground  for  inferring  unsound- 
ness of  rnind,  however,  is  not  a  ground  for  exception.1  But  evi- 
dence that  a  testatrix  undertook  to  devise  property  not  her  own 
is  relevant  and  admissible  in  a  will  contest  on  the  issue  of  want 
of  testamentary  capacity  and  undue  influence.2  And  evidence 
that  the  testator  understood  that  in  order  to  render  his  will  oper- 
ative it  would  be  necessary  to  name  all  his  heirs  is  competent  to 
explain  numerous  legacies  of  $1  each  in  his  will.3 

A  will  and  the  probate  thereof  are  not  rendered  inadmissible 
in  evidence  by  the  fact  that  the  probate  contained  an  ex  parte 
affidavit  of  one  of  the  witnesses  statino;  that  the  testator  was  of 
sound  mind,4  though  the  will  is  admissible  without  the  probate.5 

§  3.  Former  wills  and  deeds. 
A  former  will  executed  at  a  time  when  there  was  no  doubt  of 
the  capacity  of  the  testator,  containing  provisions  similar  to  those 
of  a  later  will,  is  competent  in  connection  with  other  evidence 
on  the  contested  probate  of  the  latter  on  the  question  as  to 
whether  the  testator's  mind  was  rational  and  unbiased  at  the 
time  of  the  execution  of  the  second  will.6  And  the  rule  is  the 
same  whether  the  will  was  formally  executed  or  a  mere  draft.7 
And  the  contents  of  the  former  will  may  be  proved  without 
its  production.8  But  a  former  will,  though  prepared  in  accord- 
ance  with   instructions   given    by    the  testator,  which  was  not 

1  Nash  v.  Hunt,  116  Mass.  237. 

2  Ee  Buckman's  Will,  64  Vt.  313. 

3  Whitman  v.  Morey,  63  N.  H.  448. 

4  Suramers  v.  Copeland,  125  lhd.  466. 
6  Curry  v.  Bratney,  29  Ind.  195. 

6  Tobin  v.  Jenkins,  29  Ark.  151;  Eoss  v.  McQuiston,  45  Iowa,  145;  Beau- 
bien  v.  Cicotte,  12  Mich.  459;  Thompson  v.  Ish,  99  Mo.  160;  Muller  v.  St. 
Louis  Hospital  Asso.  73  Mo.  243;  Eankin  v.  Eankin,  61  Mo.  295;  Den  v. 
Vancleve,  5  N.  J.  L.  589;  Titlow  v.  Titlow,  54  Pa.  216,  93  Am.  Dec.  691; 
Irish  v.  Smith,  8  Serg.  &  E.  573,  11  Am.  Dec.  648;  Kerr  v.  Lunsford,  3 
W.  Ya.  680,  2  L.  E.  A.  668.  And  see  Fountain  v.  Brown,  38  Ala.  72;  Love 
v.  Johnston,  12Ired.  L.  355;  Dodge  v.  Meech,  1  Hagg.  Eccl.  Eep.  612;  Mynn 
v.  Eobinson,  2  Hagg.  Eccl.  Eep.  169;  also,  dicta  in  Brown  v.  Mitchell,  87 
Tex.  140. 

7  McConneU  v.  Wildes,  153  Mass.  487;  Thornton  v.  Thornton,  39  Vt.  122. 

8  Den  v.  Vancleve,  5  N.  J.  L.  589. 


EVIDENCE   OF   INSANITY.  497 

executed  and  which  does  not  appear  to  have  been  read  over  to 
him  or  its  contents  made  known  to  or  approved  by  him,  is  not 
admissible.1  So,  a  previous  will  making  different  dispositions  of 
the  testator's  property  is  also  admissible  on  behalf  of  the  con- 
testants." But  a  previous  will  in  which  a  testator  gave  direc- 
tions respecting  the  renting  of  a  portion  of  his  farm  for  a  burying 
ground  and  the  erection  of  a  house  on  it,  is  not  admissible  as 
evidence  of  insanity  to  defeat  a  subsequent  will.3  And  refusal 
to  admit  a  former  will  in  evidence  in  a  will  contest  where  it  had 
been  destroyed  is  not  error  in  the  absence  of  any  statement  of 
counsel  as  to  what  were  the  contents  of  the  will  and  as  to  whether 
it  had  any  bearing  upon  the  question  of  the  testator's  soundness 
or  unsoundness  of  mind.4  And  a  will  in  which  the  testator 
makes  his  nephew  a  residuary  legatee,  disinheriting  his  daughter, 
and  a  trust  deed  by  him  of  certain  stocks  and  notes  to  his  former 
guardian,  made  for  the  purpose  of  carrying  the  provisions  of  the 
will  into  effect,  are  too  remote  and  uncertain  in  character,  and 
open  to  too  many  collateral  issues,  to  be  admissible  as  bearing  on 
his  mental  capacity  in  an  action  attacking  the  validity  of  his 
deed.5  So  deeds,  articles  of  incorporation,  and  other  papers  to 
which  a  testator  was  a  party,  made  after  the  date  of  his  will,  are 
competent  evidence  in  a  will  contest  for  the  purpose  of  showing 
the  extent  of  his  mental  powers  at  that  time.6  And  when  at  the 
time  of  making  certain  deeds  the  grantor  had  mental  capacity  to 
contract,  and  there  was  no  change  in  her  mind  for  the  worse 
when  she  afterwards  made  another  deed,  the  latter  being  one 
which  if  binding  would  defeat  an  action  to  set  aside  the  first,  it 
would  be  erroneous  to  charge  that  it  would  be  no  bar  to  a 
recovery  therein.7  Nor  should  the  special  attention  of  the  jury 
be  called  to  irregularities  in  a  will  unless  more  importance  is 
attached  to  that  circumstance  than  to  others.8 

1  Brown  v.  Mitchell,  88  Tex.  350. 

2  Hughes  v.   Hughes,  31  Ala.  519,  Overruling  Roberts  v.  Trawick,  13 
Ala.  68. 

3  Kachline  v.  Clark,  4  Whart.  316. 
1  Lowder  v.  Lowder,  58  Ind.  538. 
6  Hovey  v.  Hobson,  55  Me.  256. 

6  Morris  v.  Morton,  14  Ky.  L.  Eep.  360. 
1  Bowden  v.  Achor,  95  Ga.  243. 
6  Stokes  v.  Shippen,  13  Bush,  180. 


-±98  MEDICAL,   JURISPRUDENCE    OF    IXSANITV. 

§  4.  Declarations  and  admissions  of  the  party. 
Whether  declarations  or  admissions  of  a  party  would  have  any 
practical  or  material  probative  force  on  the  question  of  his  sanity 
or  insanity  is  the  true  guide  in  determining  their  admissibility  in 
evidence.1  And  declarations  of  a  person  accused  of  crime, 
made  either  before  or  after  the  criminal  act,  may  be  given  in 
evidence  on  the  question  of  his  sanity  or  insanity  for  the  purpose 
of  ascertaining  the  state  of  his  mind.a  And  where  acts,  conduct, 
and  declarations  of  the  accused  are  introduced  to  prove  his 
insanity  at  the  time  of  the  commission  of  the  act,  the  prosecution 
in  rebuttal  is  not  limited  to  the  explanation  or  denial  thereof,  but 
may  offer  evidence  of  other  acts,  conduct,  or  declarations  tending 
to  show  his  sanity  within  the  same  period.3  And  such  evidence 
is  not  objectionable  as  an  attack  upon  character/  So,  while 
declarations  of  a  grantor,  made  subsequent  to  the  execution  of 
his  deed,  cannot  be  given  in  evidence  to  invalidate  it,  declarations 
made  near  the  time  of  its  execution  are  admissible  upon  an  issue 
as  to  whether  or  not  he  was  insane  at  the  time.3  And  declara- 
tions of  a  testator  are  admissible  in  a  proceeding  to  contest  his 
will  to  show  his  mental  condition  at  the  time  of  its  execution,6' 

'  French  v.  State,  93  Wis.  325. 

a  McLean  v.  State,  16  Ala,  672;  State  v.  Hays,  22  La.  Ann.  39;  People  v. 
Lake,  1  Park  dim.  Eep.  495;  United  States  v.  Holmes,  1  Cliff.  98. 

3  United  States  v.  Holmes,  1  Cliff.  110. 

4  United  States  v.  Holmes,  1  Cliff.  111. 

6  Woodcock  v.  Johnson,  36  Minn.  217;  Chess  v.  Chess,  1  Penr.  &  W.  32,. 
21  Am.  Dec.  350;  Bice  v.  Eice,  127  Pa.  181;  Norwood  v.  Marrow,  4  Dev. 
&  B.  L.  442;  Dinges  v.  Branson,  14  W.  Ya,  100. 

6  Comstock  v.  Hadlyme  Eccl.  Soc.  8  Conn.  254,  20  Am.  Dec.  100;  Bey- 
nolds  v.  Adams,  90  HI.  134,  32  Am.  Bep.  15;  Cockeram  v.  Cockeram,  17  El. 
App.  604;  Todd  v.  Fenton,  66  Ind.  25;  Bates  v.  Bates,  27  Iowa,  110,  1  Am. 
Bep.  260;  Boss  v.  McQ.uiston,  45  Iowa,  115;  Mooney  v.  Olsen,  22  Kan.  69; 
Jones  v.  McLellan,  76  Me.  49;  Griffith  v.  Diffenderffer,  50  Md.  466; 
Harring  v.  Allen,  25  Mich.  505;  Sheehan  v.  Kearney  (Miss.)  21  So.  41,  35 
L.  B.  A.  102;  Pratte  v.  Coffman,  33  Mo.  76;  Jones  v.  Boberts,  37  Mo.  App. 
163;  Boylan  v.  Meeker,  28  N.  J.  L.  274;  Waterman  v.  Whitney,  11  N.  Y. 
157,  62  Am.  Dec.  71;  Be  Clark,  40  Hun,  233;  Sisson  v.  Conger,  1  Thonip. 
&  C.  564;  Marx  v.  McGlynn,  4  Bedf.  457,  Affirmed  88  N.  Y.  357;  Wood  v. 
Sawyer,  1  Phill.  L.  251;  Beel  v.  Beel,  1  Hawks,  248,  9  Am.  Dec.  632;  Her- 
ster  v.  Herster,  122  Pa.  239;  McTaggart  v.  Thompson,  14  Pa.  149;  Peery 
t.  Peery,  91  Term.  328;  Eobinson  v.  Hutchinson,  26  Yt.  38,  60  Am.  Dec. 


EVIDENCE    OF    INSANITY.  4:99 

or  to  show  that  he  was  laboring  under  an  insane  delusion.1  And 
admissions  and  declarations  of  ;i  donor  made  both  before  and 
after  the  execution  of  his  deed,  tending  to  show  that  undue 
influence  was  exercised  over  him  to  induce  him  to  make  it,  are 
admissible  to  the  same  extent  as  if  the  contest  was  about  the 
execution  of  a  will,2  being  admissible  to  show  capacity  and 
knowledge  of  contents,  especially  where  it  was  prepared  by  the 
donee  and  alleged  to  have  been  fraudulently  procured.3 

A  party  cannot  make  substantive  evidence  in  his  own  favor, 
however,  by  proving  his  own  declarations  out  of  court  under  the 
claim  that  his  story  would  afford  ground  for  argument  that  he 
was  insane.4  Nor  can  statements  or  admissions  of  a  person  of 
unsound  mind  be  made  the  basis  of  a  decree  against  him.6  And 
the  testimony  of  one  accused  of  crime  that  he  was  laboring  under 
such  a  defect  of  reason  as  not  to  know  the  nature  of  the  act  is 
inadmissible.6  Declarations  and  admissions  can  only  be  con- 
sidered on  the  question  of  mental  capacity.7  They  are  not 
evidence  of  the  facts  stated,  but  are  admissible  merely  as  tending 
to  show  the  operations  of  the  mind,8  nor  to  contradict  a  will  or 
show  its  revocation,9  or  for  the  purpose  of  establishing  undue 

298;  Thompson  v.  Updegraff,  3  W.  Va.  629.  And  see  Sutton  v.  Sadler,  3 
C.  B.  N.  S.  87. 

1  Brace  v.  Black,  125  111.  33. 

2  Dinges  v.  Branson,  14  W.  Va.  100.  And  see  Howell  v.  Howell,  47  Ga. 
492;  Bice  v.  Bice,  127  Pa.  181;  Haines  v.  Hay  den,  95  Mich.  332;  Johnson 
v.  Culver,  116  Ind.  278. 

3  Howell  v.  HoweU,  47  Ga.  492. 

4  State  v.  Tatro,  50  Vt.  483.     And  see  Bootle  v.  Blundell,  19  Ves.  Jr.  494. 
6  Hoffman  v.  Overbey,  137  U.  S.  465,  34  L.  ed.  754. 

6  State  v.  Kluseman,  53  Minn.  541. 

7  Turner  v.  Cook,  36  Ind.  129. 

8  Comstock  v.  Hadlyme  Eccl.  Soc.  8  Conn.  254,  20  Am.  Dec.  100;  Mooney 
v.  Olsen,  22  Kan.  69;  Jones  v.  McLellan,  76  Me.  49;  Harring  v.  Allen,  25 
Mich.  505;  Pratte  v.  Coffman,  33  Mo.  76;  Jones  v.  Boberts,  37  Mo.  App. 
163;  Gibson  v.  Gibson,  24  Mo.  227;  Be  Lang's  Estate,  65  Cal.  19.  And  see 
Stewart  v.  Bedditt,  3  Md.  67;  May  v.  Bradlee,  127  Mass.  414;  Woodbury  v. 
Obear,  7  Gray,  467;  Wurzell  v.  Beckman,  52  Mich.  478;  Fraser  v.  Jenni- 
son,  42  Mich.  206;  Bule  v.  Maupin,  84  Mo.  587;  Norwood  v.  Marrow,  4 
Dev.  &  B.  L.  442;  Kachline  v.  Clark,  4  Whart.  316;  Crocker  v.  Chase,  57 
Vt.  413. 

9  Beynolds  v.  Adams,  90  HI.  134,  32  Am.  Bep.  15. 


500  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

influence  exercised  upon  a  testator,1  unless  contemporaneously 
made,2  or  unless  there  be  proof  of  other  facts  and  circumstances 
indicating  fraud  and  circumvention.3  The  admission  of  such  evi- 
dence on  the  question  of  undue  influence,  however,  depends 
largely  upon  the  character  of  the  unsoundness  attempted  to  be 
proved.4  And  it  is  admissible  where  the  issue  is  both  undue 
influence  and  mental  incapacity ; s  or  where  it  tends  to  show 
weakness  of  mind  operated  upon  by  excessive  and  undue  impor- 
tunity, even  though  they  were  made  in  the  absence  of  the  person 
affected  thereby."  And  such  declarations  are  not  rendered  inad- 
missible by  statutes  prohibiting  a  party  from  giving  evidence  of 
conversations  with  a  deceased  person  relative  to  any  matter  in 
issue  between  the  parties,7  though  they  are  inadmissible  when 
unaccompanied  by  evidence  of  insanity  at  the  time.8 

So,  declarations  made  by  a  grantor  showing  an  intent  to  dis- 
pose of  his  property  in  the  manner  in  which  he  afterward  dis- 
poses of  it  are  admissible  in  evidence  as  tending  to  show  capacity 
at  the  time  of  such  disposition.9  And  declarations  showing  a  dif- 
ferent intent  are  admissible  as  tending  to  raise  an  inference  of 
incapacity.10  But  a  variance  between  declared  intentions  to  make 
a  gift  and  a  subsequent  deed  constituting  a  better  bargain  does  not 
affect  the  admissibility  of  the  declarations  in  evidence  in  an  action 

>  Dennis  v.  Weeks,  46  Ga.  514;  Todd  v.  Fenton,  66  Ind.  25;  Ee  Gold- 
thorp,  94  Iowa,  336;  Harring  v.  Allen,  25  Mich.  505;  Herster  v.  Herster, 
122  Pa.  239;  Titlow  v.  Titlow,  54  Pa.  216,  93  Am.  Dec.  691;  Peery  v. 
Peery,  94  Tenn.  328;  Thompson  v.  Updegraff,  3  W.  Va.  629;  Smith  v. 
Fenner,  1  Gall.  170.     And  see  Bundy  v.  McKnigkt,  48  Ind.  502. 

2  See  Todd  v.  Fenton,  66  Ind.  25;  Waterman  v.  Whitney,  11  X.T.  157, 
62  Am.  Dec.  71;  Jackson  v.  Kniffen,  2  Johns.  31.  But  see  Bates  v.  Bates, 
27  Iowa,  110,  1  Am.  Bep.  260. 

3  Herster  v.  Herster,  122  Pa.  256. 

4  Herster  v.  Herster,  122  Pa.  239. 

&  Parsons  v.  Parsons,  66  Iowa,  754;  Mooney  v.  Olsen,  22  Kan.  69. 
6  Bambler  v.  Tryon,  7  Serg.  &  B.  90,  10  Am.  Dec.  444. 
1  Be  Brown's  Will,  38  Minn.  112. 

8  Howe  v.  Howe,  99  Mass.  88;  Norwood  v.  Marrow,  4  Dev.  &  B.  L.  442; 
Crocker  v.  Chase,  57  Vt.  413.     And  see  Kachline  v.  Clark,  4  Whart.  316. 

9  Buckey  v.  Buckey,  38  W.Va.  168;  Mnller  v.  St.  Louis  Hospital  Asso.  5 
Mo.  App.  390;  Howe  v.  Howe,  99  Mass.  88. 

io  Wilkinson  v.  Pearson,  23  Pa.  117;  Beel  v.  Beel,  1  Hawks,  248,  9  Am. 
Dec.  632. 


EVIDENCE    OF    INSANITY.  5QJ 

to  set  the  deed  aside.1     So,  declarations  of  a  testator  as  to  his  in- 
tentions with  respect  to  his  will  are  admissible  in  evidence  on  the 
question  of  testamentary  capacity.2     And  the  rale  is  the  same 
whether   the   declarations   are   consistent   with  the    dispositions 
made  ;     or  whether  they  show  testamentary  intent  quite  different 
from  that  manifested  in  the  will  subsequently  made.1  And  declara- 
tions by  a  testator  appearing  to  be  sane  and  rational,  that  he  had 
not  been  m  his  right  mind  for  years,  are  competent  as  tendinc 
to  prove  insanity.5     But  declarations  of  intentions  diminish  in 
importance  as  the  grade  of  capacity  increases,  and  have  no  value 
at  all  where  the  mind  is  sound."     And  the  exclusion  of  declara- 
tions of  a  person  admitted  to  be  sane  is  not  error.7     And  the 
time  within   which  declarations  or  admissions  must  have  been 
made  to  be  admissible  in  evidence  has  been  said  to  be  shortly 
previous  or  subsequent  to  the  act  in  question,8  the  admissibility 
of  the  declarations,  connected  with  the  conduct  of  the  party 
depending  upon  the  degree  of  remoteness  with  respect  to  the  act 
in  issue.9     And  it  has  been  intimated  that  they  should  be  near 

1  Eice  v.  Eice,  127  Pa.  181. 

2  Den  v.  Vancleve,  5  N.  J.  L.  589;  Ee  Goldthorp,  94  Iowa,  336-  Bever 
v.  Spangler,  93  Iowa,  576;   Ee  Brown's  Will,  38  Minn.  112-   Ee  Pinnev' 
Will,  27  Minn.  280;   May  v.  Bradlee,  127  Mass.  414;   Thompson  v  Ish  ^99 
Mo   160;  Eule  v.  Manpin,  84  Mo.  587;   Muller  v.  St.  Louis  Hospital  Asso 
5  Mo.  App.  390;   Tunison  v.  Tunison,  4  Bradf.  138. 

3  Den,  Stevens,  v.  Vancleve,  4  Wash.  C.  C.  262;  Hammond  v  Dike   4<> 
Minn.   273;   Titlow  v.  Titlow,   54  Pa.   216,   93  Am.   Dec.   691;  Brown  v 
Mitchell,  88  Tex.  350,  36  L.  E.  A.  64;  McMechen  v.  McMechen   17  W  Va 
683,  41  Am.  Eep.  682;   Sutton  v.  Sadler,  3  C.  B.  N.  S  87 

J  ™™  v-  Titlow'  54  Pa-  216>  93  Am.  Dec.  691;  Boylan  v.  Meeker,  15 
N.  J.  Eq.   310;   Waterman  v.  Whitney,  11  N.  Y.   157    62  Am    Dec    71- 
Sisson  v.  Conger,  1  Thomp.  &  C.  564;  Ee  Denison's  Appeal,  29  Conn  *399.' 
Norris  v.  Sheppard,  20  Pa.  475. 
6  Boss  v.  McQuiston,  45  Iowa,  145;  Colvin  v.  Warford,  20  Md.  357. 

6  Tunison  v.  Tunison,  4  Bradf.  138. 

7  Harden  v.  Hays,  14  Pa.  91. 

8  Eobinson  v.  Hutchinson,  26  Vt.  38,  60  Am.  Dec.  298.     And  see  Peoule 
v.  Hawkins,  109  N.  Y.  408. 

9  See  Norwood  v.  Marrow,  4  Dev.  &  B.  L.  442;  State  v.  Vann  82  N  O 
631;  State  v.  Tilly,  3  Ired.  L.  424;  McLean  v.  State,  16  Ala.  672;  Water- 
man v.  Whitney,  11  N.  Y.  157,  62  Am.  Dec.  71. 


502  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

enough  in  point  of  time  to  be  of  the  res  gestce.1  And  declarations 
made  two  years  after  the  execution  of  the  will  have  been  held  too 
remote  to  be  admissible  as  evidence  of  the  testator's  mental 
capacity.2 

But,  upon  the  other  hand,  it  has  been  held  that  they  need  not 
be  so  near  the  act  in  question  in  point  of  time  as  to  make  them 
part  of  the  res  gestae,3  though  they  must  be  when  offered  to  estab- 
lish fraud.4  And  that  the  declarations  of  a  grantor  are  admissible 
in  an  action  to  set  aside  his  deed  upon  the  question  of  mental 
capacity  where  they  were  made  not  more  than  fifteen  months 
before  the  alleged  insanity  began  nor  more  than  eighteen  months 
before  the  disputed  deed.5  So,  where  declarations  are  given  in 
evidence  it  is  within  the  discretion  of  the  trial  court  to  admit 
evidence  that  the  person  making  them  had  first  consulted  with 
his  lawyer.6  And  the  rejection  of  declarations  made  some  time 
before  the  act  in  question  is  not  error  where  the  person  making 
them  had  not  been  restricted  in  his  proof  and  had  closed  his  case 
without  offering  them.7  Nor  is  it  competent  to  prove  declara- 
tions made  to  a  physician  as  to  the  declarant's  condition  at  a  time 
prior  to  the  declarations.* 

§  5.  Declarations  and  admissions  of  other  interested  persons. 

Declarations  by  a  person  killed,  before  the  commission  of  the 
homicide,  that  the  accused  was  insane,  are  not  admissible  in  evidence 

1  State  v.  Scott,  1  Hawks,  24;  Marx  v.  McGlynn,  4  Eedf.  457,  Affirmed 
88  N.  Y.  357;  Waterman  v.  Whitney,  11  N.  T.  157,  62  Am.  Dec.  71.  And 
see  Butkerford  v.  Morris,  77  HI.  397;  Hayes  v.  West,  37  Ind.  21;  Quisen- 
berry  v.  Quisenberry,  14  B.  Mon.  481;  Eraser  v.  Jennison,  42  Mich.  206; 
Cawthorn  v.  Haynes,  24  Mo.  236;  Gibson  v.  Gibson,  24  Mo.  227;  Tingley 
v.  Oowgill,  48  Mo.  291;   Spoonemore.v.  Cables,  66  Mo.  579. 

2  La  Bau  v.  Vanderbilt,  3  Eedf.  384;  Landis  v.  Landis,  1  Grant,  Cas.  248; 
Durant  v.  Ashmore,  2  Eich.  L.  184;  Wilkinson  v.  Pearson,  23  Pa.  117. 
But  see  Muller  v.  St.  Louis  Hospital  Asso.  5  Mo.  App.  390. 

3  Thompson  v.  Ish,  99  Mo.  160;  Dinges  v.  Branson,  14  W.  Va.  100;  Boi- 
ling v.  State,  54  Ark.  588.     And  see  Eoss  v.  McQuiston,  45  Iowa,  145. 

4  Pratte  v.  Coffman,  33  Mo.  76. 

5  Eice  v.  Eice,  127  Pa.  181. 

6  State  v.  Hansen,  25  Or.  391. 

1  State  v.  John,  8  Ired.  L.  330,  49  Am.  Dec.  396. 
8  People  v.  Hawkins,  109  N.  Y.  408. 


EVIDENCE   OF    INSANITY.  503 

to  show  insanity  upon  a  prosecution  for  the  homicide,'  though 
they  were  the  dying  declarations  of  the  person  killed ;  and  it  is 
immaterial  on  the  question  of  insanity  whether  they  were  properly 
received  or  not,  as  they  go  only  to  establish  the  fact  of  homicide.3 
Nor  is  an  admission  of  a  sister  of  the  person  killed,  who  was  shot 
at  the  same  time  and  afterwards  died,  that  the  defendant  could 
not  have  been  in  his  right  mind,  admissible  on  the  issue  of  his 
insanity.3  Nor  are  acts  and  declarations  of  the  wife  of  the  ac- 
cused on  the  day  of  the  murder."  And  evidence  of  declarations 
of  members  of  the  defendant's  family  with  relation  to  his  mental 
condition  are  not  admissible  where  the  declarants  are  living  and 
residing  within  the  county.5  So,  declarations  of  an  attorney  in 
fact  that  his  principal  was  non  corwpos  mentis  at  the  date  of  a 
deed  executed  by  the  attorney,  and  at  the  time  of  the  execution  of 
the  power  of  attorney,  are  not  admissible  in  evidence  to  defeat 
the  deed  in  behalf  of  devisees  of  the  principal.6  But  declarations 
of  a  son,  who  had  received  a  conveyance  from  his  father,  that  his 
father  was  incapable  of  transacting  ordinary  business,  and  that  he 
did  not  consider  the  deed  worth  recording,  are  admissible  against 
him  in  an  action  to  set  aside  the  deed  upon  the  ground  of  the 
father's  mental  incapacity7  though  those  of  a  father  that  his  son 
was  insane,  made  upon  making  a  provision  for  him,  are  not  ad- 
missible.8 With  reference  to  wills,  the  rule  has  been  laid  down 
generally  that  statements,  declarations,  and  admissions  by  a  dev- 
isee or  legatee  against  his  interest,  to  the  effect  that  the  testator 
was  mentally  incapable  of  making  a  will,  are  admissible  in  evi- 
dence on  a  contest  of  the  will  in  favor  of  the  contestant.9     And 

1  State  v.  Spencer,  21  N.  J.  L.  196. 

2  State  v.  Welsor,  117  Mo.  570;  State  v.  Pagels,  92  Mo.  300. 

3  Beck  v.  State,  76  Ga.  452. 

4  Warren  v.  Com.  37  Pa.  45. 

5  State  v.  Porter,  34  Iowa,  131. 

6  Bensell  v.  Chancellor,  5  Whart.  371,  34  Am.  Dec.  531. 

1  Boggess  v.  Boggess,  127  Mo.  305.  And  see  Gee  v.  Ward,  5  Week.  Eep. 
579. 

8  Gray  v.  Obear,  59  Ga.  675. 

9  Walks  v.  Luliring,  134  Ind.  447;  Milton  v.  Hunter,  13  Busk,  163; 
Pkelps  v.  Hartwell,  1  Mass.  71;  Armstrong  v.  Farrar,  8  Mo.  627;  Keithley 
v.  Stafford,  126  HI.  507.     And  see  Ducker  v.  Wkitson,  112  N.  C.  44;  Dale's 

*T)peal,  57  Conn.  127. 


504  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

that  the  declarations  and  admissions  of  executors  propounding 
the  will,  who  are  also  legatees  and  parties  to  the  record,  are  ad- 
missible on  the  question  of  testamentary  capacity,1  as  well  as  those 
of  a  contestant  in  favor  of  the  sanity  of  the  testator,2  whether 
made  before  or  after  the  execution  of  the  will.3  And  that  the 
admissions  and  declarations  of  a  legatee  under  a  will  that  she  had 
consulted  a  physician  as  to  the  testator's  capacity,  and  that 
he  would  do  anything  she  asked  him  to,  are  admissible  in  a 
proceeding  to  contest  a  will  upon  the  ground  of  testamentary 
incapacity  and  undue  influence.4  But  a  legatee  who  has  ex- 
pressed an  opinion  that  the  testator  had  not  sufficient  capacity  to 
make  a  will  may  be  properly  permitted,  on  a  contested  probate 
of  the  will,  to  explain  his  change  of  opinion  as  a  result  of  infor- 
mation with  regard  to  what  in  law  constitutes  testamentary  ca- 
pacity." And  declarations  by  a  party  seeking  to  sustain  a  will,  as 
to  mental  incapacity  of  the  testator,  are  not  admissible  unless  they 
relate  to  the  capacity  of  the  testator  at  about  the  time  the  will 
was  made  or  within  a  short  period  thereafter.6  And  statements 
of  the  devisee  several  months  before  the  making  of  the  will  in 
question,  as  to  the  incapacity  of  a  testator,  are  incompetent  to 
show  the  fact  at  the  time  the  will  was  made.7 

So,  statements  made  by  the  wife  of  a  testator  that  he  was  an 
old  fool  and  was  deranged  are  not  admissible  in  a  will  contest  as 
admissions  concerning  his  mental  condition  when  made  under 
circumstances  showing  that  they  were  the  petulant  reproaches  of 
an  irritable  old  woman  rather  than  the  expression  of  an  opinion  ;8 
and  when  declarations  against  interest  are  given  the  declarant 
may  insist  upon  giving  the  whole  conversation.9  And  the  decla- 
rations of  a  party  to  a  will  contest,  made  when  he  had  no  interest 
in  the  subject,  in  which  he  subsequently  became  interested  by 

1  Atkins  v.  Sanger,  1  Pick.  192;  Peeples  v.  Stevens,  8  Rich.  L.  198,  64 
Am.  Dec.  750;  Re  Brown's  Will,  38  Minn.  112. 

5  Ware  v.  Ware,  8  Me.  42. 

3  Peeples  v.  Stevens,  8  Rich.  L.  198,  64  Am.  Dec.  750. 

4  Horn  v.  Pullman,  10  Hun,  471. 
s  Dale's  Appeal,  57  Conn.  127. 

6  Thompson  v.  Kyner,  65  Pa.  368. 
:  Hunt  v.  Hunt,  3  B.  Mon.  575. 

*  Sellars  v.  Sellars,  2  Heisk.  430. 
4  Dale's  Appeal,  57  Conn.  127. 


EVIDENCE    OF   INSANITY.  505 

the  making  of  a  will,  cannot  be  given  against  him  as  declarations 
against  interest;1  nor  are  declarations  admissible  to  defeat  a  will 
when  the  amonnt  he  would  receive  under  it  is  less  than  he  would 
take  if  the  testator  had  died  intestate.*  And  the  rule  would  seem  to 
prevail  that  declarations  or  admissions  of  a  legatee  or  devisee  as 
to  the  mental  capacity  of  the  testator  are  not  admissible  in  a  pro- 
ceeding to  contest  the  validity  of  the  will,  where  there  are  other 
legatees  or  devisees  whose  interests  may  be  injuriously  affected 
thereby,3  where  it  does  not  appear  that  the  other  legatees  were 
either  jointly  interested  or  had  conspired  with  him,4  whether  the 
declarant  is  a  party  to  the  issue  or  not.5  In  any  event  they  could 
only  be  admitted  as  against  the  party  making  them,6  though  they 
would  be  admissible  if  the  whole  estate  were  devised  to  him.7 
The  contrary  doctrine  making  such  declarations  competent,  how- 
ever, when  they  relate  to  the  condition  of  the  testator's  mind,  has 
some  support.8 

So,  declarations  by  the  proponent  of  a  will  who  is  the  husband 
of  one  of  the  legatees,  that  the   testator  was  of  unsound  mind 

1  Burton  v.  Scott,  3  Band.  399;  "Ware  v.  Ware,  8  Me.  42. 
*  Titlow  v.  Titlow,  54  Pa.  216,  93  Am.  Dec.  691. 

3  Dale's  Appeal,  57  Conn.  127;  Shorb  v.  Brubaker,  94  Ind.  165;  Hayes 
v.  Burkam,  67  Ind.  359;  Dye  v.  Young,  55  Iowa,  433;  Be  Ames,  51  Iowa, 
596;  Shailer  v.  Bumstead,  99  Mass.  112;  LaBau  v.  Vanderbilt,  3  Bedf. 
384;  Thompson  v.  Thompson,  13  Ohio  St.  356;  Nussear  v.  Arnold,  13  Serg. 
&  B.  323;  Bovard  v.  Wallace,  4  Serg.  &  B.  499;  Boyd  v.  Eby,  8  Watts,  66; 
Dietrich  v.  Dietrich,  4  Watts,  167,  note;  Hauberger  v.  Boot,  6  Watts  &  S. 
434;  Dotts  v.  Fetzer,  9  Pa.  88;  Clark  v.  Morrison,  25  Pa.  455;  Dillard  v. 
Dillard,  2  Strobh.  L.  89;  Prather  v.  McClelland,  76  Tex.  574;  Burton 
v.  Scott,  3  Band.  399;  Forney  v.  Ferrell,  4  W.  Va.  729.  And  see  Hunt  v. 
Hunt,  3  B.  Mon.  575;  Boberts  v.  Trawick,  13  Ala.  68;  Blakey  v.  Blakey, 
33  Ala.  611;  Coryell  v.  Stone,  62  Ind.  307. 

4  La  Ban  v.  Vanderbilt,  3  Bedf.  384. 
6  Boyd  v.  Eby,  8  Watts,  66. 

6  Dale's  Appeal,  57  Conn.  127. 

1  Nussear  v.  Arnold,  13  Serg.  &  E.  323.  And  see  Ware  v.  Ware,  8  Me. 
42;  Boyd  v.  Eby,  8  Watts,  66;  Blakey  v.  Blakey,  33  Ala.  611;  Burton  v. 
Scott,  3  Band.  399. 

8  See  Dennis  v.  Weekes,  46  Ga.  514;  Milton  v.  Hunter,  13  Bush,  163; 
Bogers  v.  Bogers,  2  B.  Mon.  324;  Beall  v.  Cunningham,  1  B.  Mon.  399; 
Davis  v.  Calvert,  5  Gill  &  J.  269,  25  Am.  Dec.  282;  Armstrong  v.  Fairar,  8 
Mo.  627;  M'Craine  v.  Clarke,  2  Murph.  317;  Peeplesv.  Stevens,  8  Bich.  L. 
198,  64  Am.  Dec.  750;  Brown  v.  Moore,  6  Yerg.  272. 


506 


AIEDICAL    JURISPRUDENCE    OF    INSANITY. 


when  he  made  it,  are  not  admissible  in  evidence  to  invalidate  it.1 
An  admission  made  by  an  attesting  witness  to  the  will,  however, 
that  the  testator  was  not  competent  at  the  time  the  will  was 
executed,  and  that  he  signed  only  to  attest  the  signature,  or 
merely  to  gratify  the  testator,  is  admissible  in  evidence  for  the 
purpose  of  rebutting  the  prima  facie  effect  of  his  attestation.2 
And  where  a  witness  testifies  in  a  will  contest  that  the  will  was 
duly  execnted  by  a  competent  testator,  statements  made  by  him 
in  another  action,  that  the  instrument  was  worthless,  are  admis- 
sible in  evidence  for  the  purpose  of  impeachment.3 

§  6.  Letters  and  private  writings. 
A  letter  written  by  a  person  accused  of  crime  prior  to  its  com- 
mission is  admissible  in  evidence  upon  a  prosecution  therefor  to 
throw  light  upon  the  condition  of  his  mind  at  the  time.4  And 
the  admission  of  a  letter  written  after  his  arrest  for  the  purpose  of 
showing  his  sanity,  which  was  claimed  to  have  been  obtained  in 
an  illegal  manner,  is  not  error  where  the  defense  was  permitted  to 
introduce  evidence  with  a  view  of  proving  the  manner  in  which 
it  was  obtained.5  And  where  such  letters  have  been  destroyed, 
secondary  evidence  of  their  contents  may  be  admitted.6  So, 
letters  written  by  a  testator  either  before  or  after  the  execution 
of  his  will  are  competent  evidence  upon  the  question  of  his 
mental  capacity  and  the  condition  of  his  mind  with  reference  to 
the  objects  of  his  bounty.7  And  letters  showing  conclusive  evi- 
dence of  a  delusion  of  a  character  calculated  to  influence  a  testa- 
tor in  the  selection  of  his  beneficiaries  are  admissible  as  tending 
to  enable  the  jury  to  determine  what  weight  ought  to  be  given 
to  the  fact  that  the  will  in  question  bears  evidence  of  insanity 
upon  its  face  while  previous  wills  showed  no  indication  of  delu- 
sion.'    An  undated  and  unsigned  letter  to  his  executor,  found 

1  Walker  v.  Jones,  23  Ala.  448.     And  see  Coryell  v.  Stone,  62  Ind.  307; 
Brewer  v.  Ferguson,  11  Humph.  565. 

2  Colvin  v.  Wariord,  20  Md.  357;  Townskend  v.  Town'Liend,  9  Gill,  506. 

3  Beaubien  v.  Cicotte,  12  Mich.  459;  Lewis  v.  Mason,  109  Mass.  169. 

4  State  v.  Kring,  64  Mo.  591;  Sayres  v.  Com.  88  Pa.  291. 
8  Langdon  v.  People,  133  El.  382. 

«  State  v.  Kring,  64  Mo.  591. 

7  Marx  v.  Glynn,  88  N.  T.  357;  Dominickv.  Dominick,  20  Abb.  N.  C.  283. 

8  Yance  v.  Upson,  66  Tex.  476. 


EVIDENCE    OF    INSANITY.  507 

among  his  papers,  however,  is  not  admissible  in  evidence.1  Nor 
is  the  admission  in  evidence  of  letters  to  nieces  proving  nothing 
but  affectionate  sentiments,  and  a  reply  indicating  friendly 
solicitude  and  nothing  more,  erroneous,  as  they  could  in  no 
manner  have  influenced  the  jury.2  And  knowledge  of  the  con- 
tents of  a  will  and  assent  to  the  distribution  contained  in  it  may 
be  established  by  letters  of  the  testator  written  before  it  was 
made.3 

So,  a  contract  between  a  contestant  of  a  will  and  the  testator, 
and  checks,  letters,  receipts,  and  other  documents  wholly  or 
partially  in  his  own  handwriting,  and  his  bank  account  and 
papers  drawn  by  him  in  public  transactions,  and  his  manner  of 
participating  in  them  within  a  period  which  would  tend  to  illus- 
trate the  condition  of  his  mind  at  the  time  his  will  was  made,  are 
admissible  on  the  question  of  testamentary  capacity.4  And 
diaries  kept  by  the  testator  are  also  admissible  as  evidence  of  the 
condition  of  his  mind  with  reference  to  the  objects  of  his  bounty,5 
but  not  as  evidence  of  the  facts  stated  or  to  prove  fraud  or  undue 
influence.''  And  a  journal  kept  by  the  master  of  a  ship  is  admis- 
sible, in  a  prosecution  against  members  of  the  crew  for  a  revolt, 
to  prove  his  sanity  by  the  style  in  which  it  was  kept,  and  not  as 
evidence  of  any  fact  stated  in  it.'  The  contents  of  a  bond  exe- 
cuted by  a  testator,  however,  are  not  admissible  as  evidence  of 
his  capacity  to  comprehend  or  transact  business  where  it  does  not 
appear  that  he  read  it  or  heard  it  read.8  JSTor  is  a  letter  of  a  tes- 
tator admissible  on  the  question  of  his  mental  capacity  to  explain 
his  peculiar  actions  where  it  is  not  dated  and  it  does  not  appear 
whether  it  was  written  at  or  about  the  time  of  such  actions  or 
not.8  And  letters  by  a  testator  to  his  brother  showing  affec- 
tionate and  brotherly  relations  are  not  admissible  in  connection 

1  Murphree  v.  Senn,  107  Ala.  424. 
!  Fraser  v.  Jennison,  42  Mich.  206. 
8  McNinch  v.  Charles,  2  Eich.  L.  229. 

4  "Wise  v.  Foote,  81  Ky.  10. 

5  Marx  v.  McGlynn,  88  N.  Y.  357,  Affirming  4  Eedf.  255;  Irish  v.  Smith, 
8  Serg.  &  E.  573. 

6  Marx  v.  McGlynn,  88  N.  Y.  357,  Affirming  4  Eedf.  255. 
•  United  States  v.  Sharp,  1  Pet.  C.  C.  118. 

8  Ee  Pinney's  "Will,  27  Minn.  280. 

9  Clements  v.  McGinn  (Cal.)  33  Pac.  920. 


508  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

with  the  fact  that  he  had  not  made  his  brother's  children  objects 
of  his  bounty  where  the  letters  were  written  more  than  twenty- 
five  years  before,  and  the  brother  had  long  been  dead,  and  family 
intercourse  had  been  discontinued.1  So,  letters  addressed  to  the 
person,  found  among  his  papers  after  death,  written  in  reply  to 
communications  from  him,  are  inadmissible  as  evidence  of  his 
mental  capacity,  unless  it  is  shown  that  he  exercised  some  act  or 
judgment  or  understanding  with  reference  to  them.2  But  letters 
passing  between  the  legatees  under  a  will  and  the  heirs  who 
contest  it,  having  reference  to  the  confinement  of  the  testatrix  in 
an  insane  asylum  and  to  her  cure  and  release,  are  admissible,  not 
only  to  show  her  state  of  mind  toward  the  parties,  but  also  her 
mental  condition.3  Letters  of  a  stranger  proved  to  be  insane  are 
not  admissible  in  a  will  contest  upon  the  ground  of  the  testator's 
insanity  for  the  purpose  of  showing  that  insane  persons  might 
write  rationally.4  And  subsequent  papers  made  by  the  testator, 
though  admissible,"  are  to  be  regarded  with  jealousy,  as  he  is  not 
permitted  to  prove  his  own  insanity.6  But  a  memorandum  of 
facts  and  suggestions  concerning  unsettled  business  made  by  the 
testator  for  the  use  of  his  executors,  which  is  substantially  correct, 
is  admissible  as  tending  to  strengthen  the  inference  arising  from 
a  rational  will.7 

§  7.  Acts  and  conduct. 

The  right  to  testify  to  the  peculiar  acts  and  conduct  of  the 
party  alleged  to  be  insane  is  not  limited  to  expert  witnesses  and 
intimate  acquaintances.8  A  question  as  to  how  another  con- 
ducted himself  in  a  recent  transaction  does  not  call  for  an  opinion 
as  to  his  sanity,  but  for  a  statement  as  to  his  conduct  and  appear- 

1  Fraser  v.  Jennison,  42  Mich.  206. 

2  "Waters  v.  Waters,  35  Md.  531;  Wright  v.  Doe,  Tatham,  7  Ad.  &  El. 
313,  4  Bing.  K  C.  489;  Morgan  v.  Boys,  cited  in  7  Ad.  &  El.  337;  Handley 
v.  Jones,  cited  in  7  Ad.  &  El.  337. 

3  Foster  v.  Dickerson,  64  Yt.  233. 

4  Ware  v.  Ware,  8  Me.  42. 

6  Wood  v.  Sawyer,  1  Phill.  L.  251. 

6  Bootle  v.  Blundell,  19  Ves.  Jr.  494. 

"  Be  Weir's  Will,  9  Dana,  434. 

&  Marceau  v.  Travelers'  Ins.  Co.  101  Cal.  338. 


EVIDENCE   OF    INSANITY.  509 

ance.«     And  the  parties  to  an  action  in  which  sanity  is  in  issue 
are  not  confined  to  general  evidence  as  to  sanity  or  insanity,  but 
particular  acts  of  madness  may  be  given.2     Kor  will  testimony 
be  rejected  as  irrelevant  and  immaterial  on  the  issue  of  insanity 
merely    because   the   facts   testified   to  by  each   witness,    taken 
separately,  may  not  prove  sanity  or  insanity  to  a  sufficient  extent 
to  qualify  him  to  express  his  individual  opinion  upon  the  ques- 
tion.3   Every  act  of  the  party  and  every  circumstance  which  could 
Possibly  aid  the  jury  in  correctly  determining  the  question  are  to 
be  admitted.4     Whether  the  acts  and  conduct  of  a  person  would 
have  any  practical  or  material  probative  force  on  the  question  of 
his  sanity  or  insanity  is  the   true   guide   in  determining   their 
admissibility.6     And  evidence  merely  calculated  to  arouse  preju- 
dice without  throwing  light  on  the  question  of  capacity  should 
be  excluded.6     These  rules  apply  to  the  acts  and  conduct  of  the 
accused  in  a  criminal   prosecution,  and    they  are  admissible  in 
evidence  whether  previous  or  subsequent  to  the  criminal  act,  as 
tending  to  show  the  state  of  his  mind  at  the  time.7     And  the 
prosecution  need  not  show  unsoundness  of  mind  at  the  time  of 
performing  the  acts  to  enable  it  to  use  them  as  rebutting  testi- 
mony in  reply  to  evidence  on  the  part  of  the  prisoner  of  acts  and 
conduct  tending  to  show  insanity.8     And  the  defendant   who 
interposes  insanity  as  a  defense  may  prove  not  only  irrational  and 
insane  acts  and  conduct,  but  also  facts  which  may  account  for 
such  acts  and  show  an  adequate  cause  for  the  insane  conduct,9  the 
conduct  of  the  accused  being  admissible,  though  not  forming  a 
part  of  the  res  gestce,  whenever  it  is  so  connected  with  or  corre- 

1  Ee  Wax's  Estate,  106  Cal.  343. 

J  Cla5/'  Periam'  2  Atk-  340>  dictum-     And  see  Hodges  v.  Scott,  118 
Mass.  530;  Johnson  v.  Culver,  116  Ind.  278. 

3  First  Nat.  Bank  v.  Wirebach,  106  Pa.  37;  McTaggart  v.  Thompson,  14 
Pa.  149. 

4  Van  Deusen  v.  Newcomer,  40  Mick  90;  Ee  Pinney's  Will    27  Minn 
280;  Clark  v.  Periam,  2  Atk.  337. 

5  French  v.  State,  93  Wis.  325. 

6  Pierce  v.  Pierce,  38  Mich.  412. 

'  McLean  v.  State,  16  Ala.  672;  State  v.  Hays,  22  La.  Ann.  39;  People  v 
Lake,  1  Park.  Crim.  Eep.  495;  United  States  v.  Holmes,  1  Cliff.  98. 

8  United  States  v.  Holmes,  1  Cliff.  98. 

9  People  v.  Wood,  126  N.  Y.  249. 


510  MEDICAL    JUKISPKUDEXCE    OF    INSANITY. 

sponds  with  evidence  of  disordered  or  weakened  mental  con- 
dition preceding  the  offense  as  to  strengthen  the  inference  of 
continuance  and  carry  it  by  the  time  to  which  the  inquiry  relates, 
or  whenever  it  is  of  such  a  character  as  to  itself  indicate  unsound- 
ness of  mind  at  the  time  of  the  act  in  question.1 

Thus,  an  odd  collection  of  various  articles  of  no  value  what- 
ever, even  as  curiosities,  which  had  been  made  from  time  to 
time  by  a  person  accused  of  murder  and  preserved  with  a  view 
of  starting  a  museum,  is  admissible  in  a  prosecution  therefor 
under  the  defense  of  insanity.2  And  evidence  that  a  defendant 
in  a  criminal  prosecution  was  insane  is  relevant  and  admissible  as 
tending  to  explain  his  absence  during  a  part  of  his  trial  from 
which,  if  unexplained,  hurtful  inferences  might  be  drawn.3  But 
the  acts  and  conduct  of  the  accused  to  be  admissible  must  have 
been  offered  with  the  view  of  proving  insanity  as  an  excuse  or 
defense,4  and  they  are  not  admissible  for  the  purpose  of  showing  his 
disposition,5  or  for  the  purpose  of  showing  intent  and  deliberation 
and  premeditation,  thus  affecting  the  degree  of  the  crime.6  Nor 
is  the  mere  fact  that  the  accused  was  different  from  other  people 
in  his  manner  of  living  or  acting  or  speaking  or  eating  admissible 
upon  the  question  of  his  insanity.7  And  the  rejection  of  evidence 
that  the  accused  ate  with  a  hearty  appetite,  slept  soundly  and 
quietly,  and  evidenced  no  remorse  or  sense  of  guilt  while  in  jail 
subsequent  to  the  commission  of  the  crime,  is  not  error.3 

So,  evidence  in  an  action  involving  the  validity  of  certain 
deeds  in  which  the  grantor's  sanity  was  at  issue  that  he  remem- 
bered the  transaction  several  months  afterwards,  and  understood 
what  he  had  done,  giving  reasons  therefor,  expressing  no  regret 
or  dissent,  is  admissible  as  tending  to  show  sanity  and  ratifica- 
tion.9 And  evidence  that  a  widow  upon  the  death  of  her  husband 
took  into  her  house  to  live  with  her  a  man  who  had  abandoned 

1  Boiling  v.  State,  54  Ark.  588. 

2  State  v.  West,  1  Houst.  Crim.  Rep.  371. 
s  State  v.  Peacock,  50  X.  J.  L.  34. 

4  Sindram  v.  People,  88  X.  Y.  196,  Affirming  1  X.  T.  Crim.  Pep.  448. 

5  State  v.  Welsor,  117  Mo.  570. 

6  Sindram  v.  People,  88  X.  Y.  136,  Affirming  1  X.  Y.  Crim.  Rep.  448. 
:  Goodwin  v.  State,  96  Ind.  550. 

'  Com.  v.  Pomeroy.  117  Mass.  113. 
•  Howe  v.  Howe,  9 )  Mass.  88. 


EVIDENCE   OF    INSANITY.  511 

his  own  family,  and  of  their  living  together  for  several  years  as 
husband  and  wife,  is  admissible  on  an  application  for  the  appoint- 
ment of  a  conservator  for  her  upon  the  ground  that  by  reason  of 
her  debauched  habits  she  had  become  incapable  of  taking  care  of 
herself  and  managing  her  property.1  So,  the  rule  admitting  the 
acts  and  conduct  of  a  party  as  evidence  on  the  ground  of  mental 
capacity  applies  to  those  of  the  testator,  whether  made  before,  at 
the  time  of,  or  after,  the  making  of  the  will.2  And  it  is  compe- 
tent to  show  on  the  question  of  testamentary  capacity  in  connec- 
tion with  other  evidence  that  the  testator  was  erratic,  eccentric, 
rambling,  and  disconnected  in  conversation,  flighty  and  unsettled 
and  excitable,3  or  that  he  made  improvident  bargains/  And 
evidence  that  a  testator  would  look  at  a  visitor  with  a  vacant 
stare,  and  would  only  answer  after  being  told  who  he  was,  and 
that  his  countenance  and  appearance  indicated  foolishness,  is 
admissible  on  the  question  of  his  capacity  to  make  a  will.5  So, 
the  fact  that  before  a  will  was  made  the  testator  had  conveyed 
away  some  of  the  property  which  he  attempted  to  dispose  of  is 
competent.6  And  the  fact  that  a  testator  made  mortgages  and 
transfers  of  property  and  afterwards  forgot  it  is  admissible  upon 
the  issue  of  sanity  and  undue  influeuce  by  the  person  to  whom 
the  transfers  were  made.7  And  a  transfer  of  property  by  the 
testator  for  the  purpose  of  better  enabling  him  to  contest  a 
previous  contract  is  admissible,  and  so  is  the  fact  that  he  gave  a 
mortgage  for  more  than  was  due.8  But  the  mere  fact  that  the 
testator  was  so  irritable  and  abusive  to  his  father  that  the  doctors 
forbade  his  coming  into  the  room  is  not  admissible  as  bearing  upon 
his  mental  condition  a  few  hours  later  when  he  made  his  will.9 
ISTor  is  the  fact  that  a  testator  while  away  from  home  with  one  of 

1  Wickwire's  Appeal,  30  Conn.  86. 

2  Boylan  v.  Meeker,  28  N".  J.  L.  274.     And  see  Haines  v.  Hayden,  95 
Mich.  332. 

3  Prentis  v.  Bates,  93  Mich.  234,  17  L.  B.  A.  494.     And  see  Watson  v. 
Anderson,  11  Ala.  43. 

4  Be  Camiichael,  36  Ala.  514. 

6  Irish  v.  Smith,  8  Serg.  &  B.  573,  11  Am.  Dec.  648. 

6  Fountain  v.  Brown,  38  Ala.  72. 

7  Lewis  v.  Mason,  109  Mass.  169. 

8  Stubbs  v.  Houston,  33  Ala.  555. 

9  Be  Blood's  Will,  62  Vt.  359. 


512  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

his  sons,  wanted  to  stop  at  another  man's  house  to  see  his  daugh- 
ter."' And  the  exclusion  of  a  statement  of  a  witness  that  the 
testator  transacted  no  business,  unless  selling  articles  that  did  not 
belong  to  him  could  be  called  transacting  business,  is  not  error.2 

So,  evidence  that  the  acts,  conduct,  and  habits  of  a  person 
whose  sanity  is  in  question  were  changed  and  unnatural  and 
different  from  what  they  had  previously  been  is  admissible  as 
tending  to  show  insanity,3  or  the  existence  of  an  insane  delusion.4 
And  the  mere  fact  that  a  testator  did  not  keep  his  buildings  in 
as  good  repair  in  the  latter  part  of  his  life  as  previously  is  not 
admissible  for  the  purpose  of  showing  testamentary  incapacity/ 
The  question  whether  there  was  any  apparent  change  in  a  man's 
intelligence  or  understanding,  or  want  of  coherency  in  his  re- 
marks, is  matter  not  of  opinion,  but  of  fact,  as  to  which  any  wit- 
ness who  has  had  opportunity  to  observe  him  may  testify.6 

AY  he  re  evidence  e>f  aet>  and  conduct  of  a  person  alleged  to  he 
insane  have  been  given  to  prove  his  insanity  the  other  side  is  not 
limited  to  an  explanation  or  denial  of  the  particular  acts  or  con- 
duct, but  may  offer  evidence  of  other  acts  or  conduct  tending  to 
show  that  he  was  sane  within  the  same  period.7  Thus,  where 
evidence  has  been  introduced  on  the  part  of  the  defendant  in  a 
criminal  prosecution  for  the  purpose  of  proving  his  insanity, 
which  searched  the  history  of  his  whole  life  down  to  the  time  of 
the  act  charged,  it  is  competent  to  show  in  rebuttal  that  the 
ground  on  which  the  inference  of  insanity  was  based  did  not 
exist,  and  to  do  this  by  exhibiting  acts  and  conduct  of  the  de- 
fendant, contemporaneous  with  the  history  produced,  which  tend 
to  disprove  the  existence  of  such  grounds.6  And  evidence  of 
acts  indicating  insanity  at  the  time  of  the  commission  of  a  crim- 
inal act  may  be  met  by  evidence  that  the  accused  was  intoxi- 

!  Eice  v.  Rice,  53  Mich.  432. 
■;  Ee  Blood's  Will,  62  Yt.  359. 

» Watson  v.  Anderson,  11  Ala.  43;  Conely  v.  McDonald,  40  Mich.  150; 
Bitner  v.  Bitner.  65  Pa.  347:  Fairchild  v.  Basconib,  35  Yt.  398. 

4  Haines  v.  Hayden,  95  Mich.  332. 

5  Hamilton  v.  Hamilton.  10  E.  I.  538. 
8  Barker  v.  Coniins.  110  Mass.  477. 

'  United  States  v.  Holmes..  1  Cliff.  98;  Hall  v.  State,  31  Tex.  Crim.  Eep. 
565. 

:  United  States  v.  Guitean,  1  Mackey,  498. 


EVIDENCE    OF    INSANITY.  513 

cated  on  that  day,  to  rebut  the  inferences  arising  from  his  acts.' 
So,  preparations  made  by  a  party  committing  a  murder,  and  sub- 
sequent conversations  indicating  that  he  understood  what  he  had 
been  doing,  may  be  considered  on  the  question  of  his  sanity  as 
well  as  that  of  premeditation.2  And  evidence  that  a  person  ac- 
cused of  murder  committed  incest  with  his  daughter  is  relevant 
and  material  where  the  defense  claimed  that  he  became  insane 
from  fear  that  the  person  killed  was  trying  to  debauch  her.3 

So,  the  conduct  of  a  prisoner  as  detailed  by  an  officer  who 
looked  through  a  hole  prepared  in  the  wall  so  that  he  might  ob- 
serve him  is  competent  and  material  on  the  issue  whether  the 
sanity  claimed  was  real  or  feigned.4  And  the  accused  may  prop- 
erly be  asked  why  he  pretended  insanity/  Xor  is  evidence  by  a 
witness,  that  just  after  the  commission  of  the  offense  lie  asked 
him  the  amount  of  a  payment  he  had  made,  to  which  he  answered 
correctly,  as  he  found  by  subsequent  examination  of  his  book, 
subject  to  the  objection  that  the  book  should  have  been  pro- 
duced, the  object  not  being  to  prove  the  account,  but  the  fact 
that  the  statement  agreed  with  the  book.6  So,  where  evidence 
of  strangeness  of  conduct  toward  a  particular  person  has  been 
introduced  by  a  contestant  in  a  will  contest  to  support  an  allega- 
tion of  partial  insanity  the  propounders  may  show  similar  con- 
duct toward  other  persons.7  And  evidence  of  ill  treatment  of  a 
testatrix  by  her  husband,  and  of  his  conduct,  reputation,  and" 
character  with  reference  to  other  women  so  far  as  they  were 
known  to  her,  are  admissible  in  evidence  in  a  will  contest  in 
which  it  was  alleged  that  she  was  possessed  of  the  insane  delusion 
that  he  held  improper  relations  with  other  women.8 

§  8.  Surrounding  circumstances. 
A  very  broad  inquiry  is  permitted,  on  the  question  of  sanity 
or  insanity,  into  the  whole  chain  of  circumstances  attending  the 

1  People  v.  Miles,  143  X.  Y.  383. 
'■  Cole's  Trial,  7  Abb.  Pr.  N.  S.  321. 
3  People  v.  Lane,  101  Cal.  513. 
«  M'Kee  v.  People,  36  N.  T.  113. 
s  State  v.  Pritcliett,  106  N.  C.  667. 
6  State  v.  Hoyt,  47  Conn.  518,  36  Am.  Rep.  89. 
1  Wood  v.  Sawyer,  Phill.  L.  251. 
8  Poster  v.  Dickerson,  64  Yt.  233. 
33 


514  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

act  in  question,  it  being  deemed  to  embrace  all  the  important 
preliminaries.1  And  anything  which  tends  to  show  the  per- 
son's mental  condition  and  the  annoyance  to  which  he  was  sub- 
ject and  his  susceptibility  to  the  influence  of  those  around  him 
is  admissible  in  evidence.2  Thus,  in  determining  whether  the 
case  is  one  of  real  or  pretended  insanity  in  a  criminal  prosecution 
the  jury  should  take  into  consideration  the  person's  circumstances 
in  life  and  the  opportunity  he  has  had  of  learning  the  real 
symptoms.3  And  evidence  that  the  accused,  in  a  prosecution  for 
conveying  real  estate  without  informing  the  grantee  of  encum- 
brances thereon,  had  met  with  a  large  loss  of  property  just  before 
the  conveyance,  is  admissible  where  there  is  evidence  of  advanced 
age  and  loss  of  mind  and  memory.4  But  the  exclusion  of  evidence 
as  to  what  a  person  accused  of  killing  his  wife  said  about  his 
separation  from  her,  offered  to  show  that  the  separation  was  the 
uppermost  topic  on  his  mind,  is  not  error  where  the  witnesses 
had  already  testified  that  the  matter  of  the  separation  was  the 
principal  topic  of  his  conversation.5  So,  evidence  in  a  prosecu- 
tion for  homicide  of  information  given  to  the  accused  of  his  wife's 
misconduct  with  the  person  killed  is  admissible  to  show  that  he 
committed  the  murder  in  a  state  of  frenzy  only  when  the  informa- 
tion was  given  so  near  the  time  of  the  commission  of  the  crime 
that  there  was  not  sufficient  time  for  the  passion  it  would  natur- 
ally excite  to  subside.6  And  where  it  appears  that  the  wife  con- 
fessed to  the  accused  that  she  had  committed  adultery  with  the 
deceased,  and  that  the  confession  was  followed  by  great  anger 
and  mental  depression  on  his  part,  evidence  that  she  was  seen 
entering  a  disorderly  house  with  him  is  not  admissible,  as  it  was 
her  statement  which  is  alleged  to  have  deprived  him  of  reason, 
and  not  the  truth  thereof.7  So,  a  person  accused  of  murdering  a 
married  woman,  who  testifies  that  he  had  been  intimate  with  her 

1  Beaubien  v.   Cicotte,   12  Mich.   459;  Tobin  v.  Jenkins,  29  Ark.  151; 
Boughton  v.  Knight,  L.  B.  3  Prob.  &  Div.  64. 

2  Beynolds  v.  Adams,  90  111.  134,  32  Am.  Bep.  15. 

3  People  v.  Lake,  2  Park.  Crim.  Bep.  215. 

4  Com.  v.  Brayman,  136  Mass.  438. 
6  State  v.  Brooks,  4  Wash.  328. 

6  Sanchez  v.  People,  22  N.  Y.  147.     And  see  Sa^vyer  v.  State,  35  Ind. 
80. 

7  People  v.  Hnrtado,  63  Cal.  288. 


EVlJUJiiNCK    OF    INSANITY.  515 

and  killed  her  in  a  passion  of  jealousy  amounting  to  insanity  on 
her  refusal  to  longer  associate  with  him,  may  be  asked  on  cross- 
examination  as  to  whether  or  not  her  husband  had  forbidden  him 
to  further  associate  with  her.1  And  where  it  is  claimed  that  the 
accused  committed  the  murder  while  insane,  and  that  the  insan- 
ity was  caused  by  the  discovery  of  improper  relations  between 
the  person  killed  and  his  wife,  evidence  that  a  few  months  pre- 
vious to  their  marriage  he  had  sought  to  make  her  a  public  char- 
acter for  purposes  of  gain  is  admissible.1 

So,  evidence  in  an  action  upon  contract  in  which  insanity  is 
alleged  as  a  defense  that  the  plaintiff  took  a  mortgage  as  security 
for  certain  responsibilities  out  of  which  the  contract  originated, 
and  that  while  sane  he  received  from  the  avails  of  the  mortgage 
a  sum  more  than  sufficient  to  indemnify  him  for  the  contract,  is 
admissible,  not  to  ratify  or  confirm  the  contract,  but  as  tending  to 
prove  by  the  recognition  of  it  that  he  was  of  sound  mind  at  the 
time.3  And  proof  may  be  given  in  an  action  to  recover  for  prop- 
erty sold  in  which  the  vendee  introduced  testimony  as  to  the 
consideration  paid  in  connection  with  evidence  of  the  vendor's 
incapacity  and  the  defendant's  knowledge  of  it,  that  the  value  of 
the  property  was  greater  than  the  price  given.4  But  evidence  as 
to  the  actual  value  of  property  in  such  a  case  is  competent  only 
when  offered  to  show  that  the  price  paid  was  so  exorbitant  as  to 
be  inconsistent  with  good  faith  upon  the  part  of  the  purchaser.* 
And  evidence  in  an  action  upon  contract  made  with  an  alleged 
lunatic  that  when  he  signed  it  he  was  security  for  the  other  party 
in  a  large  amount,  and  that  the  other  party  had  no  means  of 
credit,  is  inadmissible.6  Nor  can  a  suspicion  as  to  the  character 
of  a  conveyance  by  a  son  to  his  father,  that  might  be  engendered 
by  failure  to  produce  the  father  as  a  witness  in  defense  of  the 
conveyance,  be  used  as  evidence  that  the  conveyance  was  fraudu- 
lent where  the  father's  mind  was  so  impaired  that  no  reliance 
could  be  placed  upon  his  testimony.7 

1  Greenley  v.  State,  60  Ind.  141. 

2  State  v.  Bryant,  93  Mo.  273. 

3  Grant  v.  Thompson,  4  Conn.  203,  10  Am.  Dec.  119. 

4  Henry  v.  Fine,  23  Ark.  417. 

6  Cavender  v.  Waddkigham,  5  Mo.  App.  487. 
6  Noel  v.  Karper,  53  Pa.  97. 
Woodhull  v.  Whittle,  63  Mich.  575. 


516  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

So,  the  character  as  a  business  man  of  one  to  whom  a  testator 
gave  power  of  attorney  to  manage  his  business,  and  his  pecuniary 
condition,  are  admissible  in  evidence  in  a  will  contest  as  bearing 
npon  the  capacity  of  the  testator  to  make  a  will.1  And  the 
financial  condition  of  one  who  contests  his  fathers  will,  in  which 
he  was  given  a  nominal  bequest  only,  may  be  shown  as  bearing 
upon  the  qnestion  of  reasonableness."  And  evidence  as  to  the 
amount,  situation,  etc..  of  the  testator's  property  is  admissible  as 
circumstances  bearing  on  his  mental  condition.5  But  the  fact 
that  a  testator  had  derived  a  large  property  from  inheritance. 
and  died  poor,  is  not  admissible  to  show  unsoundness  of  mind.4 
]NTor  is  the  fact  that  the  executor,  who  was  the  father  of  the 
legatee,  who  wass  stranger,  was  a  wealthy  man,  relevant  on  the 
issue  of  testamentary  capacity.5  And  the  rule  which  permits 
evidence  as  to  the  pecuniary  condition,  means,  and  ability  of  the 
beneficiaries  in  a  will,  and  those  who  might  have  been  benefited. 
with  the  view  of  determining  whether  the  testator  appreciated 
his  relation  to  them  and  exhibited  a  capable  and  disposing  mind, 
has  no  application  in  case  of  a  gift  accompanied  by  delivery.5 

So,  conversations  had  in  the  presence  of  a  testator  regarding 
the  condition  of  his  mind,  which  would  naturally  call  for  some 
response  from  him,  during  which  he  remained  silent,  are  admis- 
sible, it  being  left  to  the  jury  whether  or  not  he  heard  them.7 
And  it  is  competent  to  show  that  a  testator  who  had  been  con- 
fined in  an  asylum  was  sane  but  remained  voluntarily.5  And  the 
fact  that  the  proponent  of  a  will  secretly  managed  the  estate  of 
the  testator,  and  his  petition  for  the  appointment  of  a  guardian 
for  him,  are  relevant  and  admissil  le.  So,  evidence  of  the  bad 
character  of  an  executor  appointed  in  a  will,  in  connection  with 
facts  and  circumstances  justifying  the  inference  that  the  testator 

'■  Frarj  ~.  G-ia.  5d  Vt.  ■_"". 

;  Sim  t.  EusselL  90  Iowa,  656. 

1  Kemrarthv  '■'■  Williams,  5  Ind.  375k 

*  Kail  v.  HalL  17  Pick.  378. 

5  Murphree  v.  Senn,  107  Ala  124 

Dromv.  Thornier,  47111  192. 
"  Meeker  t.  M-— :-:.  ~-  I:  — a.  352. 
'•-  MstKh  v.  Johnston,  1  F  sfc  k  F.  122 
;  Tii.v  t.  Fi- .=  ::_.  ;.;-  Fex.  ±76. 


EVIDENCE    OF    INSANITY.  517 

knew  of  it,  is  admissible  upon  the  question  of  his  mental  capacity.1 
And  oral  evidence  as  to  the  fact  that  the  testator  did  not  hold  an 
equitable  title  to  land  devised  by  him  may  be  given  as  tending  to 
show  that  his  memory  was  good  and  his  "judgment  as  to  the  best 
mode  of  preventing  subsequent  litigation  was  sound.2  And  one 
who  makes  a  bond  for  the  conveyance  of  land  to  the  testator 
after  refusal  to  do  so  may  testify  that  he  understood  that  the 
bond  was  intended  to  secure  the  land  for  the  testator  until  he 
should  recover.3  So,  a  message  sent  to  a  physician  and  acted 
upon  is  admissible  in  evidence  as  a  part  of  the  res  gestce,  where  it 
appears  that  the  instructions  for  the  execution  of  his  will  contem- 
plated that  a  physician  should  be  sent  for.4  And  evidence  that 
women  alleged  to  have  combined  to  impose  upon  a  testator,  and 
who  kept  him  in  a  state  of  intoxication,  and  represented  each 
other  as  persons  of  good  character,  and  urged  him  to  make  a  will 
in  their  favor  to  the  exclusion  of  his  relatives,  were  women  of 
bad  character,  is  admissible.6 

So,  evidence  that  a  woman  whom  the  testator  claims  to  be  his 
daughter,  whom  he  took  into  his  household,  resembled  one  of  his 
daughters  and  was  in  fact  his  illegitimate  daughter,  is  admissible 
on  the  question  of  his  insanity.6  And  evidence  tending  to  show 
the  want  of  any  real  or  apparent  cause  for  an  alleged  delusion  is 
competent  and  material.7  And  the  fact  that  a"  white  testator 
believed  that  a  child  of  his  wife  bearing  the  peculiar  distinctive 
marks  of  a  negro  was  his  child  is  admissible  in  evidence  for  the 
purpose  of  showing  a  delusion  on  that  subject.5  And  a  son-in- 
law  of  a  testator  with  whom  he  had  frequently  charged  his  wife 
with  improper  intimacies  may  be  permitted  to  deny  such  intima- 
cies for  the  purpose  of  showing  that  the  testator's  charge  had  no 
foundation  in  fact.9  So,  evidence  that  statements  in  a  will, 
that  the  testator  had  advanced  designated  sums  to  persons  named] 

1  McGinnis  v.  Kempsey,  27  Alicia.  363. 

s  Brownfield  v.  Brownfield,  43  HI.  147. 

s  Baxter  v.  Abbott,  7  Gray,  71. 

4  Beaubien  v.  Cicotte,  12  Mich.  459. 

s  Xussear  v.  Arnold,  13  Serg.  £  B.  323. 

6  Johnson  y.  Armstrong,  97  Ala.  731.  I 

'  Mullins  v.  Cottrell,  41  Miss.  291;  .Mills's  Appeal,  44  Conn.  4S4. 

*  Florey  v.  Florey,  24  Ala.  241. 

f  Buxkhart  v.  Gladish,  123  lnd.  337. 


518  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

were  erroneous,  is  competent  for  the  purpose  of  showing  the 
mental  condition  of  the  testator,  but  not  to  contradict  the  will.1 
But  evidence  of  the  good  character  of  the  contestants,  and  of 
their  father,  who  was  the  testator's  son,  is  not  admissible  in  a  will 
contest  on  the  ground  of  the  testator's  incapacity.2     Nor  is  the 
sanity  of  a  testator  to  be  determined  by  his  religious  creed  unless 
it  is  so  absurd  as  to  afford  evidence  of  unsoundness  of  mind, 
though  it  is  proper  to  admit  testimony  as  to  it  for  the  purpose  of 
showing  his  state  of  mind.3     And  evidence  that  a  witness  had 
been  forbidden  by  the  contestant  to  go  to  see  the  testatrix  is  not 
admissible  as  tending  to  show  testamentary  incapacity  or  undue 
influence.4     Nor  is  evidence  that  other  persons  while  inmates  of 
an  insane  asylum  had  given  intelligent  depositions  and  been  per- 
mitted to  testify  in  court  admissible  where  the  testatrix  was  con- 
lined  in  an  asylum.5     Nor  is  a  refusal  to  permit  the  contestant  to 
prove  what  certain  property  was  worth  reversible  error,  where  it 
is  claimed  and  denied  that  he  had  sold  it  for  less  than  it  was 
worth.6     And  the  .exclusion  of  a  question  put  to  the  witness  in  a 
will  contest,  who  had  drawn  the  will  and  had  testified  that  the 
testator  drew  his  attention  to  a  memorandum  respecting  a  land 
trade,  as  to  what,  if  any,  recollection  he  had  upon  the  subject 
himself,  is  not  error.7     So,  where  the  relator  in  an  inquisition  of 
lunacy  charges  delusion  the  alleged  lunatic  has  the  right  to  show 
that  the  accusations  made  by  him  were  founded  on  fact.8     And 
evidence  that  the  alleged  incompetent  was  very  much  cast  down 
and  thought  his  children  were  not  using  him  right  and  were 
wasting  his  property,  and  wanted  somebody  to  take  care  of  it,  is 
admissible  as  tending,  to  show  that  he  was  subject  to  delusions.9 
But  evidence  as  to  .whether  or  not  the  alleged  lunatic  was  con- 
trolled by  his  brother,  and  was  going  down  hill  generally,  is  not 

1  Lamb  v.  Lamb,  105  Ind.  456. 

8  Tudor  v.  Tudor,  17  B.  Mou.  383. 

3  Mullins  v.  CottreU,  41  Miss.  291. 

4  Eckert  v.  Flowiy,  43  Pa.  46. 

s  Foster  v.  Dickerson,  64  Vt.  233. 

6  Ken-  v.  Lunsford,  31  W.  Va.  680,  2  L.  K.  A.  668. 

1  McGiunis  v.  Kempsey,  27  Mich.  363. 

6  Com.,  Haskell,  v.  Haskell,  2  Brewst.  491. 

9  Smith  v.  Hickenbottom,  57  Iowa,  733. 


EVIDENCE    OF   INSANITY.  519 

admissible.1  So,  the  fact  that  a  witness  bore  ill-will  toward  a 
person  alleged  to  be  insane  at  a  time  when  he  testified  in  a  pro- 
ceeding to  test  her  sanity  is  not  competent  evidence  in  an 
action  by  the  witness  against  him  for  slander  in  charging  him 
with  perjury  committed  while  testifying.2  And  statements  by  a 
witness  that  a  wife  treated  her  husband  as  a  parent  would  a 
child  is  inadmissible  to  prove  the  insanity  of  the  husband,  being 
a  mere  expression  of  opinion.3 

§  9.  Relationship  betvieen  the  parties  interested. 

The  relationship  of  the  parties  concerned  is  admissible  in  evi- 
dence in  a  criminal  prosecution  on  the  subject  of  the  mental  con- 
dition of  the  person  accused  of  the  crime.  Thus,  in  determining 
whether  a  forgery  has  been  committed  it  is  proper  to  consider 
the  relationship  of  the  parties  who  profit  or  suffer  by  it,  in  con- 
nection with  their  mental  condition  and  their  surrounding  cir- 
cumstances.4 And  evidence  in  a  prosecution  for  homicide  that 
the  accused  believed  that  the  person  he  killed  had  maintained 
improper  relations  with  his  wife,  and  statements  to  that  effect 
made  by  her,  are  admissible,  not  only  on  the  question  of  premedi- 
tation, but  as  interpreting  his  conduct  and  throwing  light  upon 
his  state  of  mind,  though  evidence  as  to  the  truth  of  such  belief 
would  not  be  competent.5  So,  evidence  that,  shortly  before  the 
murder,  the  wife  of  the  accused  told  him  that  her  father  had 
stolen  his  potatoes  and  had  criminally  assaulted  her,  is  admissible 
as  tending  to  show  what  effect  the  communication  had  upon  his 
mind  at  the  time  of  the  commission  of  the  act,  where  evidence 
had  been  previously  given  that  he  received  a  head  injury  and  as 
to  its  effect  upon  his  brain.6  And  expressions  of  hostile  feeling 
toward  the  accused,  made  by  the  person  killed,  are  admissible 
where  it  is  claimed  that  the  crime  was  committed  under  an  insane 
delusion  that  the  deceased  and  others  were  engaged  in  a  con- 
spiracy against  him,  though  they  were  not  shown  to  have  been 

1  Ee  Carmicliael,  36  Ala.  514. 

2  Hutts  v.  Hutts,  62  Ind.  214. 

3  Waters  v.  Waters,  35  Md.  531. 

4  Crawford  v.  Hoeft,  58  Mich.  1. 

5  Cole's  Trial,  7  Abb.  Pr.  N.  S.  321. 

6  People  v.  Wood,  126  N.  Y.  249. 


520  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

made  in  his  presence  or  to  have  come  to  his  knowledge.1  Evi- 
dence in  a  prosecution  of  a  person  accused  of  killing  his  wife  and 
her  paramour,  however,  of  acts  of  infidelity  on  her  part  not 
known  to  him,  are  inadmissible.2  Nor  is  evidence  admissible 
that  a  person  accused  of  killing  his  wife  had  said  to  the  witnesses 
from  time  to  time  before  the  homicide  that  he  was  greatly  at- 
tached to  her.3 

So,  evidence  tending  to  show  the  relationship  existing  between, 
a  testator  and  the  natural  objects  of  his  bounty  is  admissible  on 
an  issue  of  testamentary  capacity  or  undue  influence.4  And  hos- 
tility and  aversion  to  those  who  are  bound  to  the  testator  by  the 
ties  of  kindred  are  admissible  on  the  question  of  insanity,  not 
alone  because  of  the  existence  of  the  hostility,  but  because  if 
without  cause  it  would  tend  to  show  delusion.5  And.  the  fact 
that  a  difficulty  existed  between  a  testator  and  his  heirs  is  admis- 
sible as  tending  to  show  the  state  of  his  feelings  though  the  par- 
ticulars of  the  difficulty  are  incompetent.6  So,  evidence  of  an 
unkind  expression  concerning  a  testatrix,  used  by  one  of  her  sis- 
ters after  the  making  of  her  will,  is  admissible  where  the  evi- 
dence tends  to  show  that  the  testatrix  had  at  all  times  treated  her 
with  kindness.7  Though  evidence  as  to  improper  conduct  upon 
the  part  of  a  testator,  or  that  one  of  the  devisees  had  attempted 
to  cast  shame  and  disgrace  upon  his  memory,  is  irrelevant.8  So, 
evidence  that  a  testator's  son  was  industrious  and  had  no  vicious 
habits  is  admissible  where  evidence  had  been  given  showing  that 
the  testator  held  him  in  disesteem  as  tending  to  show  that  it  was 
the  result  of  some  unnatural  condition  or  influence.9  And  evi- 
dence of  the  general  good  character  and  conduct  of  the  wife  of 
the  testator's  son  is  admissible  on  the  question  of  imbecility  and 

1  Com.  v.  Wilson,  1  Gray,  339. 

s  People  v.  Osmond,  138  N.  Y.  80.  ■ 

3  State  v.  Swift,  57  Conn.  496. 

4  Staser  v.  Hogan,  120  Ind.  207;  Sutton  v.  Sutton,  5  Harr.  (Del.)  459; 
Spratt  v.  Spratt,  76  Mich.  384;  Crocker  v.  Chase,  57  Vt.  413. 

6  Turner  v.  Eusk,  53  Md.  65;  Brown  v.  Ward,  53  Md.  376,  36  Am.  Rep. 
422. 

6  Carter  v.  Dixon,  69  Ga.  82. 

7  Dunham's  Appeal,  27  Conn.  192. 

8  Carpenter  v.  Calvert,  83  111.  62. 

9  Frary  v.  Gusha,  59  Vt.  257. 


EVIDENCE    OF    INSANITY.  5WJ1 

fraud,  where  the  testator  had  disinherited  his  son  on  account  of 
her  supposed  extravagance ;'  though  evidence  that  the  reputation 
of  a  wife  of  a  testator,  whom  he  had  recently  married,  was  not 
good,  is  inadmissible."  So,  evidence  of  an  affectionate  relation 
between  a  father  and  son  is  admissible  as  tending  to  show  that 
the  subsequent  exclusion  of  the  son's  son  from  sharing  in  the 
grandfather's  bounty  was  unnatural  and  the  result  of  mental 
decay.3  And  intemperate  habits  of  nephews  of  a  testatrix  may 
be  proved  on  an  issue  of  testamentary  incapacity  and  undue  influ- 
ence as  tending  to  show  her  feelings  towards  them  and  to  explain 
why  she  left  them  nominal  legacies."  And  the  same  rule  ap- 
plies to  evidence  of  the  intemperate  habits  of  a  brother  of  the 
testatrix." 

So,  evidence  as  to  the  extent  of  the  testatrix's  estate  is  admissible.6 
And  so  is  evidence  of  the  pecuniary  condition  of  the  persons  who 
are  or  might  be  beneficiaries  under  the  will.7  And  evidence  that 
the  testatrix  had  brothers  and  sisters  who  were  poor  for  whom 
she  cherished  feelings  of  affection  and  of  whose  poverty  she  was 
aware  is  admissible  on  the  issue  of  testamentary  capacity  with 
reference  to  the  question  as  to  what  would  be  a  natural  and  rea- 
sonable disposition  of  her  property.8 

So,  evidence  that  a  testator  had  received  the  larger  portion  of 
his  father's  estate  is  admissible  where  his  declarations  to  that 
effect  and  that  he  intended  to  return  a  part  of  it  by  his  will  had 
been  received.9  But  evidence  of  the  amount  of  property  pos- 
sessed by  a  woman  when  she  married  is  not  admissible  in  a  pro- 
ceeding to  contest  the  will  of  her  husband  upon  the  ground  of 
unsoundness  of  mind.10  So,  the  fact  that  the  beneficiary  under  a 
former  will,  who  was  omitted  in  a  subsequent  one,  had  nursed 

1  Dietrick  v.  Dietrick,  5  Serg.  &  E.  207. 
8  Thomas  v.  Stump,  62  Mo.  275. 

3  Bost  v.  Boat,  87  N.  0.  477. 

4  Whitman  v.  Morey,  63  N.  H.  448. 
6  Fairchild  v.  Bascomb,  35  Vt.  398. 
6  Spratt  v.  Spratt,  76  Mich.  384. 

1  Stubbs  v.  Houston,  33  Ala.  555;  Sutton  v.  Sutton,  5  Harr.  (Del.)  459; 
Crocker  v.  Chase,  57  Vt.  413. 

8  Fairchild  v.  Bascomb,  35  Vt.  398. 

9  McMechen  v.  McMechen,  17  W.  Va.  683,  41  Am.  Rep.  682. 

10  Willett  v.[Porter,  42  Iud..250. 


522  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

the  family  of  the  testator  in  sickness,  is  admissible  on  a  contest 
of  the  subsequent  will  in  connection  with  evidence  that  he  had 
often  expressed  gratitude  and  his  intention  to  provide  for  her  for 
the  purpose  of  showing  the  improbability  that  he  would  have 
excluded  her  if  not  influenced  by  delusion.1  And  evidence  as  to 
the  amount  and  quality  of  the  labor  performed  for  a  testator  by 
his  children  is  admissible  as  tending  to  throw  light  upon  his  men- 
tal condition  ;2  but  would  not  be  so  where  the  labor  was  per- 
formed twenty-five  years  before.3  Evidence  in  a  will  contest  that 
the  testator's  widow  in  his  lifetime  and  after  the  will  was  made 
filed  a  petition  for  divorce,  however,  which  was  pending  at  his 
death,  is  inadmissible.4  Nor  is  evidence  admissible  that  the  tes- 
tator sold  lumber  as  the  agent  of  his  son-in-law,  and  the  purchaser 
became  embarassed,  and  the  son-in-law  suffered  a  loss  greater  in 
amount  than  any  advancements  he  had  received  from  his  father- 
in-law,  on  the  theory  that  the  advancement  would  offset  the  loss 
and  that  there  was  no  reason  for  giving  his  wife  a  smaller  share 
than  the  other  heirs.5  So,  a  witness  in  a  will  contest  in  which  mental 
imbecility  is  alleged,  who  is  called  to  impeach  the  will,  may  be 
asked  on  cross-examination  whether  he  had  ever  expected  a  de- 
vise under  it.6  And  the  petitioner  in  an  inquisition  may  be 
asked  if  he  had  not  offered  to  drop  the  matter  if  paid  a  certain 
sum.7 

§  10.  Physical  and  mental  condition. 

Independently  of  any  question  of  sanity  or  insanity  the  defend- 
ant in  a  criminal  case  has  the  right  to  have  his  general  physical 
as  well  as  his  mental  condition  at  the  time  of  the  commission  of 
the  act  explained  to  the  jury.8  And  the  character  and  quality 
of  his  mind  as  to  whether  it  was  weak  or  strong  is  a  material  fact 

1  Vance  v.  Upson,  66  Tex.  476. 

2  Burkhart  v.  Gladish,  123  Ind.  337.  And  see  Canfield  v.  Fairbanks,  63 
Barb.  462. 

3  Maddox  v.  Maddox,  114  Mo.  35. 

4  Willett  v.  Porter,  42  Ind.  250. 

6  Stokes  v.  Shippen,  13  Bush,  180. 

6  Irish  v.  Smith,  8  Serg.  &  R  573,  11  Am.  Dec.  613. 

1  Re  Mason,  60  Hun,  46. 

*  Sage  v.  State,  91  Ind.  141. 


EVIDENCE    OF    INSANITY.  523 

whore  the  defense  is  insanity.1     Everything  relating  to  the  physi- 
cal and  mental  history  of  a  party  accused  of  crime  is  relevant  on 
the  question  of  his  sanity .a     Thus,  evidence  that  the  accused  had 
been  a  sleep  walker  and  had  frequently  seemed  to  be  frightened 
when  aroused  from  sleep,  and  attempted  violence  to  those  who 
aroused  him  as  if  resisting  an  assault,  and  seemed  to  be  uncon- 
scious for  some  minutes,  is  admissible  in  a  prosecution  for  homi- 
cide in  having  killed  another  who  had  awakened  him  suddenly  out 
of  a  sound  sleep.3     So,  where  the  defendant  in  a  prosecution  for 
homicide  who  interposes  epileptic  insanity  as  a  defense  testifies  in 
his  own  behalf  to  his  own  insanity,  the  court  may  direct  the  atten- 
tion of  the  jury  without  comment  to  his  appearance  and  conduct 
as  facts  for  their  consideration  with  the  other  testimony.4     And 
the  same  may  be  done  in  a  prosecution  for  assault  and  battery 
which  were  alleged  to  have  caused  insanity,  which  insanity  is 
claimed  to  have  been  a  pretense.5     But  a  trial  will  not  be  stopped 
on  an  application  made  during  its  continuance  to  have  a  party 
whose  sanity  is  in  question  put  in  charge  of  a  physician  for  the 
purpose  of  an  examination   as  to  his  mental  condition,  in  the 
absence  of  an  offer  to  show  that  his  condition  was  then  substan- 
tially the  same  as  at  the  time  of  the  act  in  question.5     And  evi- 
dence in  a  trial  for  larceny  that  about  three  years  prior  to  the 
alleged  offense,  and  also  since  the  accused  had  been  in  jail,  he  had 
been  subject  to  epileptic  fits  which  had  weakened  his  mind  and 
would  tend  to  account  for  contradictory  statements  made  by  him 
about  the  possession  of  the  stolen  money,  is  not  admissible  unless 
followed  by  proof  that  such  fits  rendered  him  irresponsible  for 
his  acts.7     So,  evidence  on  a  trial  for  a  criminal  act  in  which  it 
appeared  that  the  accused  was  addicted  to  the  habitual  and  exces- 
sive use  of  opium,  and  that  at  the  time  of  the  alleged  commission 
of  the  offense  he  had  been  deprived  of  his  customary  supply,  and 
as  to  the  effect  such  deprivation  would  have  upon  his  mental  con- 

1  People  v.  Worthington,  105  Cal.  166. 

2  Guiteau's  Case,  10  Fed.  Rep.  161.    And  see  Martin  v.  Baker,  135  Mo.  495. 

3  Fain  v.  Com.  78  Ky.  183,  39  Am.  Rep.  213. 

4  Com.  v.  Bnccieri,  153  Pa.  535. 

6  Spear  v.  Sweeney,  88  Wis.  545. 

6  Hall  v.  Louth,  109  Ind.  315,  58  Am.  Rep.  405. 

1  Gross  v.  State,  62  Md.  179. 


524 


MEDICAL   JURISPRUDENCE    OF    INSANITY. 


dition,  is  admissible  as  tending  to  show  whether  he  was  in  such  a 
mental  condition  as  to  be  able  to  commit  it.1  And  evidence  by 
neighbors  of  the  accused  that  they  had  never  seen  him  have  an 
epileptic  fit,  but  had  seen  him  drunk,  is  admissible  as  tending  to 
shoMr  that  stupor  which  he  attributed  to  epilepsy  was  really  due 
to  drink.2 

So,  where  there  is  evidence  tending  to  show  head  injury  and 
a  diseased  condition  of  the  brain  in  a  prosecution  for  homicide, 
and  that  a  communication  was  made  to  the  accused  which  caused 
him  to  become  insane,  its  competency  is  not  affected  by  the  fact 
that  the  act  was  committed  deliberately.3  But  evidence  as  to  the 
temperament  and  disposition  of  the  accused  is  not  admissible 
where  it  is  intended  not  to  show  insanity  or  an  insane  impulse 
which  destroyed  his  free  agency,  but  only  to  show  that  he  was  of 
an  excitable  temperament,  and  that  for  the  moment  he  lost  his 
self-government.4  And  evidence  of  peculiarity,  eccentricity,  ner- 
vousness, excitability,  or  inordinate  passion  is  not  admissible  to 
show  insanity  or  anything  from  which  insanity  can  be  inferred.* 
ISTor  can  the  mother  of  a  person  accused  of  homicide  who  inter- 
poses insanity  as  a  defense  tell  what  effect  fits  which  she  testifies 
he  had  when  two  years  old  had  on  him,  or  whether  they  rendered 
him  unconscious  or  not.6 

So,  the  age  of  a  person  whose  mental  capacity  to  make  and 
deliver  a  deed  is  in  question,  as  well  as  his  health,  his  mode  of 
life,  his  manners  and  conversation  and  his  acts  and  general  con- 
duct both  before  and  after  the  execution  thereof,  are  legitimate 
and  proper  for  consideration  by  the  jury.7  And  evidence  show- 
ing the  character  and  progress  of  the  decay  of  the  mental  faculties 
of  the  maker  of  a  deed  and  bill  of  sale  from  the  time  they  were 
made  until  his  death  is  admissible  in  an  action  to  set  them  aside 
on  the  ground  of  imbecility  and  sinister  influences.8     So,  evidence 

i  Rogers  v.  State,  33  Ind.  543. 

2  Com.  v.  Buccieri,  153  Pa.  535. 

3  People  v.  Wood,  126  N.  T.  249. 

4  Jacobs  v.  Com.  121  Pa.  586. 

5  Com.  v.  Cleary,  143  Pa.  26;  Sindram  v.  People,  1  N.  Y.  Grim.  Rep.  448; 
Affirmed  88  N.  Y.  196. 

6  State  v.  Hockett,  70  Iowa,  442. 

1  Doe,  Guest,  v.  Beeson,  2  Houst.  (Del.)  246. 
*  Hendrix  v.  Money,  1  Bush,  306. 


1  VIDENCE    OF    INSANITY.  525 

in  a  will  contest  in  which  testamentary  incapacity  is  alleged  of 
the  testatrix's  physical  condition  is  admissible,  as  her  mental  con- 
dition might  be  affected  by  it.1  And  the  age  and  physical  and 
mental  condition  of  the  testator  are  admissible  for  consideration 
hi  determining  his  testamentary  capacity.2  And  everything  occur- 
ring at  the  time  of  the  execution  of  the  will,  including  the  testa- 
tor's mental  and  physical  condition,  may  be  properly  brought  out 
on  cross-examination.3  Thus,  evidence  tending  to  show  failure  of 
the  testator's  memory  is  admissible  as  bearing  upon  the  question 
of  his  intellectual  condition  and  capacity."  And  so  is  evidence 
that  a  short  time  before  making  the  will  he  was  insensible  and 
unconscious  of  what  was  going  on  around  him,  and  did  not  appear 
to  know  an  intimate  acquaintance,  and  that  efforts  to  converse 
with  him  were  ineffectual,  such  evidence  not  being  a  mere  matter 
of  opinion  but  a  matter  of  fact  combining  many  minute  particu- 
lars.6 And  evidence  that  the  testator  had  difficulty  in  stating  the 
names  of  slaves  he  wished  to  donate,  and  that  his  principal  bene- 
ficiary assisted  him  in  ascertaining  them,  and  that  he  was  asked 
when  writing  his  will  if  he  could  recollect  what  dispositions  he 
had  made  and  whether  he  was  capable  of  dictating  the  different 
dispositions  without  assistance,  is  admissible.6  So,  the  plaintiff, 
in  an  action  brought  to  contest  the  validity  of  his  father's  will 
upon  the  theory  that  the  testator's  faculties  had  been  impaired  by 
long-continued  illness  to  such  an  extent  as  to  incapacitate  him, 
may  be  asked  as  to  his  father's  health  for  some  years  before  he 
died,  and  especially  at  about  the  time  of  making  the  will.7  And 
a  witness  as  to  the  insanity  of  a  testatrix  may  be  asked  on  cross- 
examination  whether  the  testatrix  did  not  attend  a  certain  banquet 
as  it  might  be  an  important  fact  if  true  that  she  was  able  to  attend." 
And  the  question  whether  the  eyesight  of  a  testator  was  good 
enough  to  have  enabled  him  to  recognize  the  witness  when  near 

1  Whitman  v.  Morey,  63  N.  H.  448;  Sutton  v.  Sutton,  5  Harr.  (Del.)  459. 

2  Sutton  v.  Sutton,  5  Harr.  (Del.)  459. 

3  Egbert  v.  Egbert,  78  Pa.  326. 

4  Fountain  v.  Brown,  38  Ala.  72. 
6  Halley  v.  Webster,  21  Me.  461. 

6  Aubert  v.  Aubert,  6  La.  Ann.  104. 

1  Sim  v.  Eussell,  90  Iowa,  656. 

8  Prentis  v.  Bates,  93  Mich.  234,  17  L.  E.  A.  494. 


526  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

him  if  his  mind  had  been  right  may  be  asked.'  So,  evidence 
showing  a  knowledge  on  the  part  of  the  executor  and  proponent  of 
a  will,  who  derived  a  benefit  thereunder,  of  the  weak  state  of  the 
testator's  mind,  is  admissible  as  evidence  in  chief  where  there  is  evi- 
dence that  he  exercised  an  influence  to  have  a  will  made.2  And 
infirmity  of  mind  of  a  party  who  had  been  insane  is  admissible  as 
tending  to  show  that  the  disorder  was  not  entirely  rooted  out.3  But 
where  positive  evidence  of  a  testatrix's  incapacity  has  been  given, 
and  it  is  shown  that  she  had  a  paralytic  attack  shortly  before  the 
execution  of  the  will,  evidence  that  in  nine  cases  out  of  ten  paraly- 
sis does  not  produce  any  effect  on  the  mind  is  incompetent.4 
And  where  the  testator  is  shown  to  have  had  three  strokes  of 
paralysis,  one  before  making  his  will  and  the  second  a  short  time 
afterwards,  and  the  third  resulting  in  his  death,  evidence  that  the 
same  disease  had  affected  his  ancestors  and  blood  relatives  is  prop- 
erly excluded,  as  it  does  not  show  the  effect  of  the  malady  upon 
him.5  Nor  is  exclusion  of  evidence  of  the  mental  and  moral 
condition  of  a  testatrix,  who  was  seventy-eight  years  old  when 
her  will  was  executed,  fifteen  years  after  making  the  will  when 
she  was  affected  with  paralysis,  and  of  evidence  of  her  bodily  and 
mental  condition  at  subsequent  periods  until  her  death  at  the  age 
of  ninety-one,  offered  to  prove  that  she  was  weak  in  body  and 
mind  when  she  executed  it,  sufficient  ground  of  exception.6  And 
the  fact  that  the  ordinary  effect  of  morphine  is  to  weaken  the 
power  of  the  will  is  immaterial  in  an  action  to  set  aside  a  will  on 
the  ground  of  undue  influence  where  the  evidence  shows  that 
there  was  in  fact  no  weakening  of  the  will  power  and  no  effort 
to  control  the  testator.7 

§  11.  Hereditary  insanity. 
Inquiry  into  the  mental  condition  of  the  immediate  family, 
ancestors,  and  relatives  of  the  person  whose  sanity  is  in  question 

1  Irish  v.  Smith,  8  Serg.  &  E.  573. 

8  Dennis  v.  Weekes,  46  Ga-.  514,  dictum. 

3  Attorney  General  v.  Parnther,  3  Bro.  Ch.  441. 

4  Landis  v.  Landis,  1  Grant,  Cas.  248. 
•*  Meeker  v.  Meeker,  75  HI.  260. 

6  Shailer  v.  Bumstead,  99  Mass.  112. 
•  Bush  v.  Lisle,  89  Ky.  393. 


EVIDENCE    OF    INSANITY.  527 

is  permissible,1  after  it  has  been  established  that  the  disease  of 
insanity  is  often  hereditary  in  form.2  This  rule  has  been  applied 
to  the  in san it}T  of  the  father  of  the  person  whose  sanity  is  ques- 
tioned,3 and  to  that  of  his  father  and  mother  and  an  uncle,4  and  to 
that  of  a  grandfather,5  and  to  that  of  a  sister  and  nieces.6  And 
to  that  of  a  brother  arising  from  causes  similar  to  that  which  had 
induced  the  act  in  question.7  And  reputation  in  the  family  as  tO' 
previous  cases  of  insanity  may  be  proved  in  such  case.8  Such 
evidence  is  not  relevant  or  admissible  to  show  insanity,  how- 
ever, in  the  absence  of  proof  or  an  offer  to  prove  that  it  was- 
hereditary,9  or  that  the  alleged  disease  is  one  which  affects  the 
mind.10  And  where  a  defendant  in  a  prosecution  for  murder  in 
which  insanity  is  alleged  introduces  evidence  that  his  sister  had 
been  insane,  the  state  may  inquire  as  to  what  caused  the  insanity, 
in  order  to  show  that  it  was  not  hereditary.11  So,  it  must  appear 
that  the  alleged  insanity  of  the  accused  is  not  a  temporary  malady, 
and  that  it  is  of  the  same  species  as  that  with  which  other  mem- 
bers of  his  family  had  been  afflicted.12  And  the  fact  of  unsoundness 
of  mind  of  ancestors  or  brothers  and  sisters  must  be  proved  by  per. 
sons  speaking  from  their  own  personal  knowledge  and  observation, 
and  not  by  tradition  or  hearsay.13     And  in  order  to  render  heredi- 

1  State  v.  Windsor,  5  Harr.  (Del.)  512;  Bradley  v.  State,  31  Ind.  492. 
State  v.  Felter,  25  Iowa,  67;  Baxter  v.  Abbott,  7  Gray,  71;  People  v.  Gar- 
butt,  17  Mich.  9,  97  Am.  Dec.  162;  Prentis  v.  Bates,  93  Mich.  234,  17  L. 
R.  A.  494;  Walsh  v.  People,  88  N.  Y.  458;  Coughlin  v.  Poulson,  2  McArth. 
308;  Com.,  Haskell,  v.  Haskell,  2  Brewst.  491;  Com.  v.  Winnemore,  1 
Brewst.  356;  Hagan  v.  State,  5  Baxt.  615;  Beg.  v.  Tucket,  1  Cox,  C.  C. 
103,  4  L.  T.  50.     But  see  M'Adam  v.  Walker,  1  Dow,  P.  C.  148. 

2  Beg.  v.  Tucket,  1  Cox,  C.  C.  103,  4  L.  T.  50.  And  see  State  v.  Simms,. 
68  Mo.  305. 

3  State  v.  Felter,  25  Iowa,  67. 

4  Baxter  v.  Abbott,  7  Gray,  71. 

B  Beg.  v.  Tucket,  1  Cox,  C.  C.  103,  4  L.  T.  50. 
6  Prentis  v.  Bates,  93  Mich.  234,  17  L.  B.  A.  494. 

I  People  v.  Garbutt,  17  Mich.  9,  97  Am.  Dec.  162;  Fraser  v.  Jennison,. 
42  Mich.  206. 

8  State  v.  Windsor,  5  Harr.  (Del.)  512. 

9  Reichenbach  v.  Buddach,  127  Pa.  564. 

10  Walsh  v.  People,  88  N.  Y.  458. 

II  State  v.  Hoyt,  47  Conn.  518,  36  Am.  Rep.  89. 

12  State  v.  Christmas,  6  Jones,  L.  471. 

13  Coughlin  v.  Poulson,  2  MacArth.  308. 


528  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

tary  insanity  admissible  in  evidence  there  must  also  be  evidence 
tending  to  prove  that  the  person  whose  act  is  questioned  was 
himself  insane,1  or  that  the  act  was  without  apparent  motive,2 
though  it  need  not  raise  a  reasonable  doubt  of  his  sanity.3  Xor 
is  evidence  admissible  in  a  will  contest  that  several  of  the  family 
of  the  testatrix  had  been  afflicted  with  paralysis  in  advanced  age, 
accompanied  by  an  enfeeblement  of  the  mental  and  moral  powers, 
and  that  it  was  a  family  tendency,  as  bearing  upon  the  question 
of  her  mental  condition,  where  the  only  foundation  laid  therefor 
consisted  of  evidence  that  two  years  before  she  had  complained 
of  feeling  numb  and  at  that  time  and  afterwards  she  was  physi- 
cally weak  and  somnambulent  and  mentally  inactive,  and  that  she 
had  paralysis  fifteen  months  after  the  execution  of  the  will/ 
And  evidence  in  a  prosecution  for  homicide  in  which  insanity  is 
interposed  as  a  defense,  that  the  accused  had  one  child  who  was 
subject  to  epileptic  fits  of  the  same  character  as  those  with  which 
he  claims  to  be  afflicted,  is  inadmissible.5 

§  12.  Reputation  and  hearsay. 
A  predisposition  to  insanity  cannot  be  proved  by  family  tradi- 
tion.6    And  insanity  cannot  be  proved  by  reputation  or  public 
opinion.7     And  evidence  of  the  general  reputation  of  a  person  in 
the  neighborhood  in  which  he  resided,  as  being  insane,  is  inad- 

'  People  v.  Smith,  31  Cal.  466;  Murphy  v.  Com.  92  Ey.  485;  Laros  v. 
Com.  84  Pa.  200;  Doe,  Mather,  v.  Whitefoot,  8  Car.  &  P.  270.  And  see 
State  v.  Cunningham,  72  N.  C.  469;  Snow  v.  Benton,  28  HI.  306. 

2  People  v.  Smith,  31  Cal.  466. 

3  Jones  v.  People,  23  Colo.  276. 

4  Shailer  v.  Bumstead,  99  Mass.  112. 
6  Hall  v.  Com.  22  W.  N.  C.    '25. 

6  Com.  v.  Moss,  6  Kulp,  31. 

7  People  v.  Pico,  62  Cal.  50;  State  v.  Hoyt,  47  Conn.  518,  36  Am.  Eep. 
89;  Brinkley  v.  State,  58  Ga.  296;  Stewart  v.  State,  58  Ga.  577;  Choice  v. 
State,  31  Ga.  424;  Foster  v.  Brooks,  6  Ga,  291;  Grubb  v.  State,  117  Ind. 
277;  Walker  v.  State,  102  Ind.  502;  Yeates  v.  Beed,  4  Blackf.  463,  32  Am. 
Dec.  43;  Ashcraft  v.  DeArmond,  44  Iowa,  229;  Townsend  v.  Pepperell,  99 
Mass.  40;  Thompson  v.  Ish,  99  Mo.  160;  Brinkman  v.  Bueggesick,  71  Mo. 
553;  Lancaster  County  Nat.  Bank  v.  Moore,  78  Pa.  407,  2]  Am.  Bep.  24; 
Pidcock  v.  Potter,  68  Pa.  348,  8  Am.  Eep.  181;  Hall  v.  Com.  22  W.  K  C. 
25;  McLane  v.  Elder  (Tex.  Civ.  App.)  23  S.  W.  758;  Ellis  v.  State,  33  Tex. 
Crim.  Eep.  86;   Wright  v.  Doe,  Tatham,  1  Ad.  &  El.  3. 


EVIDENCE    OF    INSANITY.  529 

missible  to  prove  that  a  person  residing  therein  was  cognizant  of 
the  fact.1  Nor  can  a  witness  in  an  action  to  set  aside  a  will  upon 
the  ground  of  unsoundness  of  mind  be  asked  on  cross-examina- 
tion if  he  would  have  taken  the  testator's  note  during  the  last 
year  of  his  life,  and  if  he  heard  anybody  question  his  sanity.2 
Evidence  of  the  uniform  good  character  as  a  man  and  citizen  of 
a  person  accused  of  homicide  who  pleads  insanity,  however,  is 
competent  and  admissible  as  tending  to  show  that  he  could  not 
have  been  sane  at  the  time  the  deed  was  done.3  So,  hearsay  evi- 
dence is  not  admissible  to  establish  the  insanity  of  a  party  to  a 
contract  sought  to  be  annulled.4  And  a  witness  in  an  action 
involving  the  question  of  sanity  or  insanity  cannot  be  allowed  to 
testify  to  what  somebody  else  said  about  the  acts  or  conduct  of 
the  person  alleged  to  be  insane.6  Nor  is  evidence  as  to  what  a 
person  who  took  a  man  accused  of  murder  to  the  hospital  for 
medical  treatment  previous  to  the  offense  thought  as  to  his  men- 
tal condition  at  that  time  competent,  it  being  merely  hearsay.6 
And  the  same  rule  applies  to  evidence  that  a  person's  mother 
from  his  childhood  spoke  of  him  as  being  diseased  in  mind,  and 
that  he  was  called  crazy  by  the  family.7  Nor  can  the  draughts- 
man of  a  will  be  asked  whether  he  was  ever  warned  of  the  fact 
that  the  testator  was  not  competent  to  manage  his  affairs,  and  by 
whom  and  when.8  So,  evidence  of  conversations  between  third 
parties  affirming  the  insanity  of  the  testator,  though  had  in  the 
presence  of  the  executor  without  his  denying  it  while  the  testator 
was  still  living,  is  not  admissible  to  invalidate  the  will,  where  the 
executor  did  not  know  of  his  appointment  at  that  time.9  And 
statements  by  the  wife  of  a  person  accused  of  murder  whose  con- 
fession to  him  is  alleged  to  have  made  him  insane,  made  to  a 
third  party  and  not  known  to  him,  are  not  admissible  on  the 

1  Greenslade  v.  Dare,  20  Beav.  284. 

2  Staser  v.  Hogan,  120  Ind.  227. 

3  Hopp  v.  People,  31  111.  385. 

4  Myers  v.  Knabe,  51  Kan.  720. 

*  Kidder  v.  Stevens,  60  Cal.  414;   Barker  v.  Pope,  91  N.  0.  165. 
«  State  v.  Gut,  13  Minn.  343. 
1  People  v.  Montgomery,  13  Abb.  Pr.  N.  S.  207. 
8  Waters  v.  Waters,  35  Md.  531. 
3  Ware  v.  Ware,  8  Me.  42. 
34 


530  MEDICAL    JUKISPRUDENCE    OF    INSANITY. 

question  of  his  insanity.1  Nor  can  a  daughter  of  a  testator  who 
had  mysteriously  left  his  home  and  remained  away  for  some  time 
be  asked  what  was  said,  if  anything,  in  the  presence  of  the  pro- 
ponents of  the  will  in  relation  to  such  absence.2  So,  evidence  of 
conversations  between  the  attesting;  witnesses  of  a  will  with  ref- 
erence  to  the  competency  of  the  testator  is  inadmissible  to  rebut 
the  effect  of  their  attestation.3  And  a  witness  testifying  as  to  the 
mental  capacity  of  a  testator  cannot  be  permitted  to  detail  con- 
versations between  himself  and  a  third  person  with  relation  to 
the  testator  and  his  eccentricities.*  Nor  can  such  a  witness  in  a 
criminal  action  testify  that  he  had  expressed  the  same  opinion  to 
a  third  person  some  time  before  and  what  such  third  person  said  in 
reply.5 

Questions  put  to  the  witnesses  in  a  will  contest  in  which  in- 
sanity is  alleged  respecting  family  history,  however,  are  not 
objectionable  on  the  ground  of  being  hearsay.6  And  conversa- 
tions of  a  testator  are  admissible  upon  the  question  of  insanity  to 
show  the  state  of  his  mind.7  And  the  same  rule  applies  to  con- 
versations between  the  plaintiff  in  an  action  for  a  personal 
injury  and  the  defendant's  agent  at  the  time  of  making  a  settle- 
ment evidenced  by  a  release.8  But  an  inference  of  testamentary 
incapacity  cannot  be  drawn  from  conversations  between  the  tes- 
tator and  another  which  are  not  disclosed  to  the  jury.*  The  ex- 
clusion of  evidence  in  a  will  contest,  upon  the  ground  of  unsound- 
ness of  mind,  of  conversations  between  the  testator  and  his 
daughters  which  did  not  tend  to  prove  unsoundness  of  mind,  is 
within  the  discretion  of  the  court.10  And  a  question  asked  a 
witness  as  to  what  the  person  whose  sanity  is  questioned  had  said 

1  People  v.  Hurtado,  63  Cal.  288. 

2  Rush  v.  Megee,  36  Ind.  69. 

8  Colvin  v.  Watford,  20  Md.  357. 
4  Hughes  v.  Hughes,  31  Ala.  519. 
8  People  v.  Schmitt,  106  Cal.  48. 

6  Fraser  v.  Jennison,  42  Mich.  206;  State  v.  Windsor,  5  Harr.  (Del.)  512 ; 
Walker  v.  State,  102  Ind.  502. 
1  Mullins  v.  Cottrell,  41  Miss.  291;  Staser  v.  Hogan,  120  Ind.  207. 

8  Missouri  P.  R.  Co.  v.  Brazzil,  72  Tex.  233. 

9  Irish  v.  Smith,  8  Serg.  &  R.  573,  11  Am.  Dec.  648.     And  see  People  v. 
Lake,  1  Park.  Crim.  Rep.  495,  Affirmed  12  N.  Y.  358. 

10 Vance  v.  Vance,  74  Ind.  370. 


EVIDENCE    OF    INSANITY.  531 

became  of  a  certain  deed  is  irrelevant  and  immaterial,  where  it 
does  not  appear  when  the  deed  was  made  or  what  property  was 
transferred  by  it,  and  there  is  nothing  to  show  that  the  deed  was 
treated  otherwise  than  deeds  usually  are.' 

§  13.  Adjudications  and  certificates  of  lunacy. 

The  general  rule  in  regard  to  inquisitions  of  lunacy  is  that  they 
are  admissible  in  evidence  to  establish  the  insanity  of  the  party 
in  all  classes  of  actions,2  even  as  against  strangers  in  the  pro- 
ceeding who  had  no  opportunity  to  cross-examine  witnesses.1 
And  records  of  the  probate  court  showing  that  a  person  was 
treated  by  it  as  the  lawful  guardian  of  a  non  compos  will  be 
received  as  prima  facie  evidence  of  guardianship,  after  a  long 
lapse  of  time,  to  supply  direct  proof  of  a  probate  appointment.4 
So,  the  record  of  the  appointment  of  a  conservator  is  admissible 
to  show  such  appointment,  in  a  criminal  prosecution  against  the 
ward  for  an  assault  upon  the  conservator  while  entering  the 
ward's  dwelling  to  perform  the  duties  of  his  appointment ; 6  and 
evidence  of  a  proceeding  taken,  in  which  the  commission 
declared  a  wife  insane,  is  admissible  in  a  prosecution  against  her 
husband  for  conspiracy  to  confine  her  in  a  lunatic  asylum,  even 
in  the  absence  of  any  allegation  of  collusion  or  fraud  between 
the  husband  and  the  commissioner."     Nor  can  the  admission  in 

»  Ee  Wax's  Estate,  106  Cal.  343. 

2  Nichol  v.  Thomas,  53  Ind.  42;  Ockendon  v.  Barnes,  43  Iowa,  615;  Haw- 
kins v.  Grimes,  13  B.  Mon.  257;  Gibson  v.  Soper,  6  Gray,  279,  66  Am.  Dec. 
414;  Tauger  v.  Skinner,  14  N.  J.  Eq.  389;  Wkitenack  v.  Stryker,  2  N.  J. 
Eq.  8;  Eider  v.  Miller,  86  N.  Y.  507;  Osterhout  v.  Shoemaker,  3  Hill,  513; 
Hart  v.  Deamer,  6  Wend.  497;  Hoyt  v.  Adee,  3  Lans.  173;  Goodell  v. 
Harrington,  3  Thomp.  &  C.  345;  Wheeler  v.  State,  34  Ohio  St.  394,  32  Am. 
Eep.  372;  Cathcart  v.  Sugenheimer,  18  S.  C.  123;  M'Creight  v.  Aiken, 
Eice,  L.  56;  Kerr  v.  Lunsford,  31  W.  Va.  680,  2  L.  E.  A.  668;  Burnham 
v.  Mitchell,  34  Wis.  117;  Hume  v.  Burton,  1  Eidgew,  P.  C.  204;  Sergeson 
v.  Sealey,  2  Atk.  412;  Faulder  v.  Silk,  3  Campb.  126;  Cooke  v.  Turner,  15 
Sim.  611.     But  see  Ee  Pinney's  Will,  27  Minn.  280. 

3  Osterhout  v.  Shoemaker,  3  Hill,  513;  M'Creight  v.  Aiken,  Eice,  L.  56; 
Sergeson  v.  Sealey,  2  Atk.  412. 

4  Thomas  v.  Hatch,  3  Sumn.  170.  And  see  Edson  v.  Munsill,  10  Allen, 
557. 

6  State  v.  Hyde,  29  Conn.  564. 
6  Com.  v.  Spink,  27  W.  N.  C.  37. 


532  MEDICAL    JURISPRUDENCE    OF   INSANITY. 

evidence  of  a  record  of  a  commission  of  lunacy,  showing  that  the 
obligor  in  a  bond  had  been  a  lunatic  previous  to  its  execution, 
and  that  he  was  subsequently  restored  by  a  decree  of  the  court, 
on  an  issue  as  to  the  amount  of  the  bond  alleged  to  have  been 
fraudulently  obtained  for  a  greater  amount  than  was  due,  be 
objected  to  by  the  obligee.1  And  an  inquisition  finding  a  party 
to  have  been  a  lunatic  for  a  preceding  period  is  not  rendered 
incompetent  by  a  statute  providing  that  the  inquiry  must  be  con- 
fined to  the  question  of  incompetency  at  the  time  it  was  made, 
where  it  was  submitted  to  the  jury  without  remark  as  to  its  effect 
other  than  that  it  was  not  conclusive.2  And  orders  in  the  course 
of  lunacy  proceedings  are  admissible  as  evidence  that  proceedings 
were  had,  but  not  as  evidence  of  the  facts  therein  stated.3 

A  determination  or  order  in  a  proceeding  not  designed  to  fix 
the  status  of  the  party,  however,  is  not  admissible  upon  an  issue 
as  to  the  insanity  of  the  party.4  The  determination  upon  a  coro- 
ner's inquest  would  appear  to  be  within  this  rule,5  and  so  is  a 
judgment  declaring  a  will  invalid.6  And  the  record  of  proceed- 
ing under  the  iSTebraska  statute  in  which  a  person  has  been 
adjudged  insane  and  a  fit  subject  for  treatment  in  the  hospital 
for  insane  persons  is  not  admissible  in  an  action  to  avoid  a  deed 
on  the  ground  of  insanity.7  J^or  is  a  physician's  certificate  pre- 
pared from  the  statements  of  relatives  and  friends  of  a  patient  in 
an  insane  asylum  competent  to  show  his  mental  condition  pre- 
vious to  his  confinement.8  IS'or  is  a  written  declaration  signed 
by  witnesses  and  a  deceased  medical  attendant,  certifying  to  the 
sanity  of  a  person,  admissible  on  the  issue  of  testamentary  capacity 
where  the  certificate  was  not  an  official  act.8 

Records  of  the  public  hospital  for  the  insane  must  be  shown  to 

1  Stauffer  v.  Young,  39  Pa.  455. 

2  Dominick  v.  Dominick,  20  Abb.  N.  C.  286. 

*  Creagh  v.  Blood,  2  Jones  &  L.  509,  8  Ir.  Eq.  434 

4  See  Wheeler  v.  State,  34  Ohio  St.  394,  32  Am.  Eep.  372;  Leggate  v. 
Clark,  111  Mass.  308;  Gridley  v.  Boggs,  62  Cal.  190. 

5  Gridley  v.  Boggs,  62  Cal.  190. 

fi  See  Wheeler  v.  State,  34  Ohio  St.  394,  32  Am.  Eep.  372;  State  v.  Tur- 
ner, Wright  (Ohio)  26;  Jones  v.  White,  1  Strange,  68. 

7  Dewey  v.  Allgire,  37  Neb.  6;  Leggate  v.  Clark,  111  Mass.  308. 

8  Butler  y.  St.  Louis  L.  Ins.  Co.  45  Iowa,  93. 

9  Martin  v.  Johnston,  1  Fost.  &  E.  122. 


EVIDENCE    OF    INSANITY.  533 

have  been  kept  in  compliance  with  the  laws  of  the  institution  to 
be  admissible  on  the  question  of  sanity  or  insanity,  and  such 
laws  must  be  introduced  to  establish  the  fact.1  So,  a  recital  in 
an  order  appointing  a  guardian,  that  the  ward  is  insane,  is 
superfluous  and  incompetent  evidence  of  testamentary  incapacity.3 
And  refusal  to  admit  that  portion  of  the  adjudication  of  insanity 
which  instructs  the  committee  appointed  as  to  the  scope  of  his 
duty  is  not  error.3  But  the  admission  of  a  record  in  a  lunacy 
matter  containing  recitals  and  statements  which  are  not  evidence 
and  might  influence  the  verdict  is  not  a  ground  for  a  new  trial 
where  the  judge  informs  the  jury  that  the  recitals  are  not  evi- 
dence, and  cautions  them  to  disregard  them.4  So,  a  decree  dis- 
missing a  petition  for  the  appointment  of  a  guardian  for  an 
alleged  insane  person,  and  a  verdict  and  judgment  on  appeal 
from  such  decree  in  favor  of  his  sanity,  may  be  given  in  evidence 
as  tending  to  show  capacity  to  make  a  deed.5  But  the  dismissal 
of  a  petition  to  place  a  testator  under  guardianship  with  the  con- 
sent of  his  children,  who  afterwards  contest  the  validity  of  his 
will,  is  not  material  in  the  will  contest  upon  the  question  of 
undue  influence.8 

So,  a  verdict  pronouncing  a  person  sane  is  not  admissible  to 
establish  his  sanity  in  a  subsequent  prosecution  for  murder,  but 
the  offer  of  such  evidence  by  the  district  attorney,  which  was 
rejected,  is  not  misconduct  on  his  part  prejudicial  to  the  defend- 
ant.7 Nor  are  proceedings  on  an  examination  by  a  commissioner 
as  to  the  sanity  of  a  person,  instituted  to  determine  whether  she 
was  a  proper  subject  to  be  admitted  into  a  hospital,  finding  that 
she  was  of  sound  mind  and  at  times  feigned  insanity  to  escape 
criminal  prosecution,  admissible  against  her  on  a  prosecution  for 
crime.8 

So,  duly  authenticated  proof  of  a  record  of  a  lunacy  proceeding 

1  Butler  v.  St.  Louis  L.  Ins.  Co.  45  Iowa,  93. 

2  Eice  v.  Eice,  53  Mich.  432. 

3  Kerr  v.  Lunsford,  31  W.  Va.  680,  2  L.  E.  A.  668. 

4  Creagh  v.  Blood,  2  Jones  &  L.  509,  8  Ir.  Eq.  434. 

5  Gibson  v.  Soper,  6  Gray,  279,  66  Am.  Dec.  414. 

6  Lewis  v.  Mason,  109  Mass.  169. 
1  People  v.  Ward,  105  Cal.  335. 

8  Neanes  v.  State,  143  Ind.  299. 


534  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

in  another  state  is  admissible  in  evidence  on  a  petition  for  the 
appointment  of  a  committee  of  a  lunatic.1  But  it  is  of  no  effect 
where  it  appears  that  notice  of  a  proceeding  was  not  given.4  And 
a  copy  of  the  records  of  a  probate  court  in  another  state,  stating 
that  the  father  of  an  insured  person  had  been  found  to  be  insane, 
is  not  admissible  in  an  action  upon  the  insurance  policy  in  which 
a  breach  of  warranty  that  none  of  the  family  of  the  insured  had 
been  afflicted  with  insanity  was  claimed,  where  no  proof  is  made 
as  to  the  authority  of  the  court  under  the  laws  of  that  state.3 
ISTor  is  the  testimony  of  a  superintendent  of  a  hospital  for  the 
insane  in  another  state  admissible  in  such  case,  where  he  knew 
nothing  of  the  disease  of  the  father  of  the  insured,  and  based  his 
statements  upon  what  was  shown  by  the  records  of  the  hospital/ 
So,  an  inquisition  of  lunacy  is  not  evidence  of  insanity  prior  to 
the  date  on  which  it  was  made,5  unless  it  overreaches  and  em- 
braces the  time  of  the  act  in  question.6  And  a  verdict  of  a  jury 
upon  an  inquisition  is  not  admissible  upon  a  traverse  of  a  finding 
in  the  inquisition.7  JSTor  are  proceedings  in  lunacy  finding  a  mort- 
gagor to  have  been  a  lunatic  for  a  period  covering  the  date  of  the 
mortgage  admissible  to  invalidate  the  mortgage  in  the  absence  of 
proof  of  fraud  or  notice  to  the  mortgagee  of  the  mortgagor's 
mental  incapacity.8  But  such  a  record  of  another  court  which 
had  been  quashed  for  irregularity,  though  not  competent  to  prove 
the  person's  incapacity  to  contract,  is  competent  when  the  pro- 
ceeding was  carried  on  with  the  knowledge  of  the  person  with 
whom  he  contracted  to  show  knowledge  on  his  part  of  his  state 
of  mind.9  And  members  of  an  inquest  which  found  a  grantor 
to  be  of  unsound  mind  are  competent  to  prove  the  unsoundness 
or  a  lucid  interval  when  the  facts  are  within  their  knowledge, 

1  Ee  Linton,  29  W.  N.  C.  550.     And  see  Ee  Perkins,  2  Johns.  Ch.  124 

2  Com.,  Stewart,  v.  KLrkbridge,  2  Brewst.  419. 

3  Newton  v.  Mutual  Ben.  L.  Ins.  Co.  15  Hun,  597. 

4  Newton  v.  Mutual  Ben.  L.  Ins.  Co.  15  Hun,  597. 

5  Burnham  v.  Mitchell,  34  Wis.  117;  Hovey  v.  Chase,  52  Me.  301,  83  Am. 
Dec.  514. 

6  Ee  Blaker,  27  N.  Y.  Week.  Dig.  486;  Goodell  v.  Harrington,  5  Thomp. 
&  C.  345. 

'•  Com.,  Haskell,  v.  Haskell,  2  Brewst.  491. 
s  Mills  v.  Slook,  9  W.  K  C.  379. 
9  Prather  v.  Xaylor,  1  B.  Mon.  244. 


EVIDENCE   OF    INSANITY.  535 

but  they  cannot  be  examined  as  to  what  they  intended  by  the 
return  to  the  inquisition.1  So,  a  record  showing  the  appointment 
of  a  guardian  for  a  grantor  is  inadmissible  in  an  action  to  set 
aside  his  deed  on  the  ground  of  mental  incapacity,  where  the 
proceeding  for  the  appointment  of  the  guardian  was  long  sub- 
sequent to  the  conveyance.3  And  the  record  of  proceeding  in 
lunacy  had  after  the  entry  of  a  judgment  upon  a  promissory 
note  is  inadmissible  in  a  proceeding  to  revive  the  judgment  as 
evidence  of  the  defendant's  incapacity  to  execute  the  note.3 

So,  the  record  of  proceeding  in  a  separate  trial  in  which  one  of 
two  defendants  jointly  indicted  is  adjudged  insane  is  not  evidence 
either  of  the  fact  or  of  such  insanity  upon  the  trial  of  the  indict- 
ment.4 And  a  judgment  roll  showing  a  conviction  for  murder, 
containing  no  suggestion  of  insanity,  is  not  admissible  in  a  civil 
action  upon  a  life-insurance  policy  for  the  purpose  of  showing 
that  the  insured  could  not  have  been  insane  at  the  time.6  Nor  is 
a  judgment  setting  aside  a  will  of  a  person  admissible  in  an  action 
to  set  aside  a  deed  made  by  him  on  the  ground  of  mental  inca- 
pacity as  tending  to  show  his  insanity,  where  it  was  rendered  some 
time  subsequent  to  the  giving  of  the  deed.6  Evidence  in  an  action 
on  a  note  tending  to  show  that  the  maker  was  competent  to  make 
it  at  the  time  is  admissible,  where  the  answer  alleges  the  finding 
of  &n  inquisition  of  lunacy  determining  that  he  had  been  a  lunatic 
for  thirty  years.7  But  evidence  of  a  lucid  interval  is  not  admis- 
sible in  Missouri  to  controvert  the  insanity  of  a  person  who  has 
been  placed  under  guardianship  as  insane,  and  non  est  factum  may 
be  pleaded  to  a  deed  subsequently  made  by  him,  and  the  special 
matter  given  in  evidence.8 

1  Hutchinson  v.  Sandt,  4  Eawle,  234,  26  Am.  Pec.  127;  Bowman  v.  Van 
Baum,  14  W.  N.  C.  185. 

2  Hovey  v.  Chase,  52  Me.  305,  83  Am.  Dec.  514.     But  see  Eider  v.  Miller 
86  N.  Y.  507. 

3  Henry  v.  Brothers,  48  Pa.  70. 

4  Marler  v.  State,  67  Ala.  55,  42  Am.  Eep.  95. 
6  Marceau  v.  Travelers'  Ins.  Co.  101  Cal.  338. 

^  6  Hovey  v.  Chase,  52  Me.  305,  83  Am.  Dec.  514;  Gridley  v.  Boggs,  62 
Cal.  190.     But  see  Hanna  v.  Bead,  102  HI.  596,  40  Am.  Eep.  608. 

1  Knox  v.  Knox,  30  S.  C.  377. 

8  Eannells  v.  Gerner,  80  Mo.  475. 


536 


MEDICAL   JUBISPEUDENCE    OF    INSANITY. 


V.    ExPEET  AND  OPINION  EVIDENCE. 

§  1.  Admissibility  of  opinions  of  experts — generally. 
The  opinions  of  expert  witnesses  as  to  the  sanity  or  insanity  of 
a  person  are  generally  if  not  universally  held  to  be  admissible  in 
evidence  in  all  proceedings  in  which  the  question  arises.1  Such 
opinions  are  admitted  because  experts  are  supposed  by  their  study 
and  practice  to  understand  the  symptoms  of  insanity  and  possess 
peculiar  knowledge  on  that  subject,  as  the  jury  might  not  be  able 
to  decide  the  question  correctly,2  as  a  scientific  deduction  from  the 
facts  of  the  case ; 3  and  may  be  founded  either  upon  the  expert's 
personal  examination  of  or  acquaintance  with  the  person  whose 
sanity  is  in  question,  or  upon  the  evidence  given  by  the  other 
witnesses  with  relation  to  the  question,  or  upon  a  hypothetical 
case  stated  to  the  witnesses  so  framed  as  to  resemble  as  near  as 
may  be  the  case  under  consideration  ; 4  and  may  be  given  without 
stating  the  grounds  upon  which  they  were  formed,5  though  such 
reasons  may  be  asked  for  or  given.6  Previous  opinions  of  experts, 
however,  are  not  generally  admissible  in  evidence,7  though  they 
are  so  if  they  are  in  the  shape  of  official  records  or  certificates 
required  by  law.8 

§  2.   Opinions  founded  on  examination. 

An  expert  witness  who  has  had  opportunities  for  knowing  and 
observing  a  person  whose  sanity  is  in  question  may  give  an  opin- 
ion on  that  question  based  on  knowledge  obtained  from  such  ob- 

1  Choice  v.  State,  31  Ga.  424;  Chandler  v.  Barrett,  21  La.  Ann.  58,  99 
Am.  Dec.  701;  Com.  y.  Brayinan,  136  Mass.  438;  McGinnis  v.  Kempser, 
27  Mich.  363;  Be  Mason,  60  Hnn,  46;  Clark  v.  Sawyer,  3  Sandf.  Ch.  351; 
Lake  v.  People,  1  Park.  Crim.  Bep.  495;  Puryear  v.  Beese,  6  Coldw.  21; 
Pigg  v.  State,  43  Tex.  108;  Shelton  v.  State,  34  Tex.  666;  Beavan  v. 
McDonnell,  26  Eng.  L.  &  Eq.  541. 

"l  Lake  v.  People,  1  Park.  Crim.  Bep.  495. 

3  Coyle  v.  Com.  104  Pa.  117. 

4  Boardman  v.  Woodman,  47  N.  H.  120;  Com.  v.  Bogers,  7  Met.  500,  41 
Am.  Dec.  458. 

5  Lodge  v.  Lodge,  2  Houst.  (Del.)  419. 

6  Leache  v.  State,  22  Tex.  App.  279,  58  Am.  Bep.  638;  People  v.  Barber, 
115  N.  Y.  475. 

'  Martin  v.  Johnston,  1  Fost.  &  E.  122. 

8  Norris  v.  Seed,  3  Exch.  782;  Lovatt  v.  Tribe,  3  Fost.  &  F.  9. 


EVIDENCE    OF    INSANITY. 


537 


servation,'  where  he  fully  states  the  condition,  appearance,  and 
conversations  of  the  person  at  the  time."     This  rule  includes  the 
family  physician  of  the  person  whose  sanity  is  in  question.3     And 
testimony  in  a  will  contest  by  the  testator's  attending  physician 
that  the  fact  that  testator  had  judiciously  managed  his  property 
prior  to  his  last  sickness,  and  the  making  of  his  will  tended  to 
show  that  he  was  subject  to  no  delusion  while  making  it,  is  com- 
petent."    And  a  question  asked  a  physician  as  to  the  state  of 
mind  of  a  person  upon  a  particular  /lay,  based  upon  his  appear- 
ance, actions,  condition,  and  conversation,  is  not  objectionable  as 
leading  and  suggestive  where  he  had  previously  testified  that  he 
had  attended  such  person  for  some  time  including  that  day,  and 
described  his  ailments  and  physical  condition,  and  had  conversed 
with  him.5     Nor  is  a  question  asked  an  expert  who  had  seen  and 
conversed  with  the  testator  for  an  hour  or  two  at  a  time  on  three 
different  occasions,  whether  he  would  not  necessarily  have  dis- 
covered insanity  had  it  existed.8     So,  a  medical  witness  in  a  crim- 
inal prosecution  may  be  asked  whether  from  the  whole  of  his 
intercourse  with  the  accused  it  appeared  to  him  that  he  was  in- 
sane.'    And  the  physician  of  a  testator  who  had  committed  sui-. 
cide,  after  testifying  to  his  mental  condition  during  the  time  he 
attended  him,  may  be  asked  in  a  will  contest  to  state  from  his 
personal  knowledge  whether  the  testator's  condition  had  been  or 
was  yet  an  indication  of  insanity,  and  what  the  act  of  suicide 
would  indicate  on  the  question  of  soundness  or  unsoundness  of 

1  McAllister  v.  State,  17  Ala.  434,  52  Am.  Dec.  180;  Potts  v.  House,  6 
Ga.  324;  State  v.  Felter,  25  Iowa,  67;  Hatborn  v.  King,  8  Mass.  371,  5  Am. 
Dec.  106;  Baxter  v.  Abbott,  7  Gray,  71;  McHugb  v.  Fitzgerald,  103  Mich. 
21;  Eice  v.  Eice,  53  Micb.  432;  Horab  v.  Knox,  87  N.  C.  490;  State  v. 
Potts,  100  N.  G.  457;  Bitner  v.  Bitner,  65  Pa.  347;  Gibson  v.  Gibson,  9 
Yerg.  329;  Pigg  v.  State,  43  Tex.  108;  Brown  v.  Mitchell,  75  Tex.  9;  Har- 
ris v.  State,  18  Tex.  App.  287;  McClackey  v.  State,  5  Tex.  App.  320;  Fos- 
ter v.  Dickerson,  64  Vt.  233. 

2  Brown  v.  MitcheU,  75  Tex.  9;  McHugb  v.  Fitzgerald,  103  Mich.  21; 
Harris  v.  State,  18  Tex.  App.  287. 

3  Hall  v.  Perry,  87  Me.  569. 

4  Coryell  v.  Stone,  62  Ind.  307. 

6  Wheelock  v.  Godfrey,  100  Cal.  578. 
€  Foster  v.  Dickerson,  64  Vt.  233. 
1  Frith's  Case,  22  How.  St.  Tr.  307. 


53 S  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

mind.1  And  such  a  physician  may  be  asked  in  an  action  upon 
an  insurance  policy  in  which  it  is  claimed  that  the  assured  killed 
himself  while  insane,  what  from  his  experience  or  reading,  and 
from  his  acquaintance  with  the  mental  condition  of  the  deceased, 
the  effect  would  be,  if  any,  of  the  disease  of  melancholia  as  to 
power  to  control  the  actions  or  resist  impulses  with  which  one 
might  be  seized,  and  how  he  thought  it  might  be  in  the  present 
case.2  So,  such  a  physician  who  states  on  an  inquisition  of  lunacy 
that  he  had  met  and  conversed  with  the  alleged  lunatic  in  order 
to  test  the  condition  of  his  mind  and  notice  his  general  appear- 
ance may  be  asked  whether  he  discovered  any  evidence  of  un- 
soundness, and  be  permitted  to  state  his  opinion  upon  the  ques- 
tion of  insanity,  though  he  claimed  to  have  formed  no  settled 
opinion  as  to  the  depth  of  his  mind.3  And  an  expert  who  testi- 
fies in  a  criminal  action  that  the  accused  presented  the  appear- 
ance of  an  abject  and  despairing  man  may  explain  the  reason  for 
such  opinion.4  And  such  opinions  are  not  confined  to  experts 
who  were  the  attending  physicians  of  the  person  whose  sanity  is 
in  question.6  An  expert  witness  cannot  be  allowed  to  give  an 
opinion  as  to  the  mental  condition  of  the  person  founded  upon 
personal  examination,  however,  without  first  showing  the  circum- 
stances and  facts  upon  which  such  opinion  is  based  ;6  and  such 
opinions  stating  no  facts  as  a  basis  therefor  would  be  inadmissi- 
ble,7 though  the  contrary  has  been  held  in  Maryland.8 

So,  the  evidence  of  a  physician  sent  to  the  jail  by  the  prose- 
cuting attorney  to  make  an  examination  of  the  prisoner's  mental 
and  physical  condition,  as  to  his  opinion  thereon,  is  not  subject 
to  the  objection  that  he  was  thereby  compelled  to  furnish  evi- 
dence against  himself.9     But  the  court  in  a  criminal  prosecution 

1  Frary  v.  Gusha,  59  Yt.  257. 

2  Koenig  v.  Globe  Mut.  L.  Ins.  Co.  10  Hun,  558. 

3  Re  Carruichael,  36  Ala.  514. 

4  Coyle  v.  Com.  104  Pa.  117. 

6  Bitner  v.  Bitner,  65  Pa.  317. 

6  Chandler  v.  Barrett,  21  La.  Ann.  58,  99  Am.  Dec.  701;  Hathorn  v. 
King,  8  Mass.  371,  5  Am.  Dec.  106;  White  v.  Bailey,  10  Mich.  155;  Gibson 
v.  Gibson,  9  Yerg.  329;  Puryear  v.  Eeese,  6  Coldw.  21.  But  see  Potts  v. 
House,  6  Ga.  324,  1  Am.  Dec.  329. 

:  Dickinson  v.  Barber,  9  Mass.  225,  6  Am.  Dec.  58. 

s  Crockett  v.  Davis,  81  Md.  134. 
People  v.  Kemmler,  119  N.  Y.  580. 


EVIDENCE   OF   INSANITY.  539 

will  not  stop  the  trial  and  give  the  physician  called  by  the  de- 
fense time  to  observe  the  defendant  and  form  an  opinion  as  to 
his  sanity,  where  he  had  already  delayed  the  trial  for  a  long  time 
by  dilatory  methods,  during  which  there  was  ample  time  to  make 
such  observation.1  And  an  expert  who  had  stated  on  a  hypo- 
thetical case  that  in  his  opinion  the  defendant  was  insane  cannot 
be  subsequently  asked  to  state  his  opinion  as  to  the  condition  of 
his  mind  at  the  time  of  the  act  judging  from  a  personal  examina- 
tion since  made  and  the  hypothetical  case  upon  which  he  had 
already  expressed  his  opinion,  things  occurring  since  the  act  hav- 
ing little  or  no  weight  as  evidence  of  the  condition  of  his  mind 
at  the  time.2  So,  it  is  not  necessary  to  the  admissibility  of  the 
opinion  of  an  expert  that  he  should  have  heard  all  of  the  evi- 
dence where  his  opinion  is  based  upon  his  own  knowledge  and 
observation,  and  what  was  said  to  him  by  the  person  whose  sanity 
is  questioned.3  And  the  exclusion  of  expert  witnesses  from  the 
court-room  during  the  trial  is  not  error  where  they  are  not  called 
upon  for  an  opinion  based  upon  the  other  testimony,  but  simply 
as  witnesses  to  give  evidence  of  the  condition  of  the  person  as 
derived  from  personal  acquaintance  with  him.4  The  rule  has 
been  laid  down  in  a  Maine  case,  however,  that  an  expert  witness 
cannot  be  asked  to  state  facts  tending  to  show  the  state  of  mind 
of  a  person  whose  sanity  is  in  question  as  to  soundness,  but  can 
only  be  permitted  to  state  how  he  appeared  with  reference  to 
soundness  or  unsoundness.6 

§  3.  Opinions  based  upon  the  evidence. 
By  the  weight  of  authority  the  opinions  of  expert  witnesses  on 
the  question  of  the  sanity  or  insanity  of  a  person,  based  upon 
facts  proved  at  the  trial,  assuming  them  to  be  true,  are  compe- 
tent evidence,  though  they  had  made  no  personal  examination 
and  knew  nothing  of  the  actual  facts."     And  it  is  proper  to  ask 

1  State  v.  Crisp,  126  Mo.  605. 
■  State  v.  Welsor,  117  Mo.  570. 

3  State  v.  Hay  den,  51  Vt.  296;  State  v.  Gould,  40  Kan.  258. 

4  Johnson  v.  State,  10  Tex.  App.  571. 
6  Wyman  v.  Gould,  47  Me.  159. 

6  McAllister  v.  State,  17  Ala.  434,  52  Am.  Dec.  180;  State  v.  Windsor,  5 
Harr.    (Del.)  512;  Potts  v.  House,  6  Ga.  324,  1  Am.  Dec.  329;  Negroes 


540  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

the  witness  as  to  the  nature  of  the  person's  insanity,  and  as  to 
what  state  of  mind  the  symptoms  indicated,  and  what  he  would 
expect  the  person's  conduct  to  be  under  the  supposed  circum- 
stances.1 The  attention  of  the  witness  may  be  called  to  such  acts 
as  are  claimed  by  one  party  to  show  sanity,  and  his  opinion  taken 
as  to  whether  such  facts,  together  with  those  claimed  to  have 
been  proved  by  the  other  party,  are  inconsistent  with  the  claim 
of  insanity.2  And  the  better  practice  has  been  held  to  be  to 
allow  medical  experts,  called  solely  as  such,  to  remain  in  the 
room  and  hear  all  the  testimony  in  order  that  from  the  whole 
they  might  be  able  to  determine  the  matters  upon  which  their 
opinions  are  desired,  though  where  this  has  not  been  done,  a 
hypothetical  case  embracing  all  the  facts  may  be  submitted.3 
Where  there  is  any  conflict  of  evidence,  or  any  doubt  as  to  what 
the  evidence  is,  the  expert  should  be  required  to  state  fully  his 
understanding  as  to  what  facts  are  established  thereby.4  And 
the  facts  upon  which  his  opinion  is  founded  must  be  stated  and 
the  jury  left  to  determine,  not  only  the  truth  of  the  facts,  but 
of  the  opinion  founded  thereon.5 

A  refusal  to  permit  an  expert  witness  who  had  heard  all  of  the 
evidence  to  give  his  opinion  upon  the  facts  stated,  however,  is 
not  error  where  the  court  permits  the  witness  to  be  asked  his 
opinion  upon  an  hypothetical  case  corresponding  with  the  testi- 
mony, or  permits  the  evidence  to  be  read  and  his  opinion  to  be 

Jerry  v.  Townshend,  9  Md.  145;  Com.  v.  Rogers,  7  Met.  500,  41  Am.  Dec. 
458;  Kempsey  v.  McGinniss,  21  Mich.  123;  State  v.  Klinger,  46  Mo.  224; 
People  t.  Barber,  115  X.  T.  475;  State  v.  Potts,  100  N.  C.  457;  Yardley  v. 
Cuthbertson,  108  Pa.  395,  56  Am.  Eep.  218;  Vance  v.  Upson,  66  Tex.  476; 
Webb  y.  State,  9  Tex.  App.  490;  Foster  v.  Dickerson,  64  Vt.  233;  State  v. 
Harden,  51  Yt.  296;  Eex  v.  Wright,  Enss.  &  E.  C.  C.  456;  Eex  v.  Searle,  1 
Moody  <fc  E.  75;  McXaghten's  Case,  10  Clark  &  F.  200.  And  see  Ee 
Storer,  28  Minn.  9. 

1  Com.  v.  Eogers,  7  Met.  500,  41  Am.  Dec.  458. 

2  Prentis  v.  Bates,  93  Mich.  234,  17  L.  E.  A.  494.  And  see  Eeg.  v. 
Frances,  4  Cox,  C.  C.  57. 

3  Johnson  v.  State,  10  Tex.  App.  571;  Leache  v.  State,  22  Tex.  App.  279, 
58  Am.  Eep.  638. 

4  Bennett  v.  State,  57  Wis.  67,  46  Am.  Eep.  26. 

6  Kempsey  v.  McGinniss,  21  Mich.  123;  Wetherbee  v.  Wetherbee,  38 
Vt.  454. 


EVIDENCE    OF    INSANITY. 


541 


asked  on  the  supposition  that  the  facts  were  true.1  And  it  has 
been  held  that  an  expert  witness  on  the  question  of  sanity  cannot 
be  asked  his  opinion  from  the  whole  evidence  where  it  is  con- 
flicting, and  that  the  question  put  to  him  should  state  particular 
facts  in  evidence,  hypothetically  assuming  them  to  be  true,  so 
framed  that  the  jury  can  see  upon  what  particular  assumed  facts 
his  opinion  is  based.2  And  that  questions  put  to  such  a  witness 
must  be  framed  hypothetically  unless  there  is  no  conflict  of  evi- 
dence as  to  the  facts,  or  unless  the  expert  is  personally  acquainted 
with  them.3  And  the  rule  has  been  laid  down  by  other  cases 
absolutely  that  the  opinions  of  expert  witnesses  as  to  the  sanity 
of  a  person  should  not  be  given  upon  the  evidence  in  the  case, 
but  may  be  asked  for  generally  with  reference  to  a  similar  case 
hypothetically  stated,4  a  question  calling  for  his  opinion  as  to  the 
facts  proved,  involving  a  determination  of  the  truth  of  such  facts 
as  well  as  the  scientific  conclusions  to  be  drawn  therefrom.5  Nor 
can  he  state  what  insanity  is,  or  what  causes  insanity,  but  must 
assume  hypothetical  facts  when  he  tells  the  jury  his  conclusion.6 
And  the  court  need  not  have  the  testimony  read  to  him  to 
enable  him  to  express  an  opinion.7  Error  in  permitting  an  expert 
witness  to  give  his  opinion  as  to  the  mental  condition  of  a  person 
instead  of  a  hypothetical  statement,  however,  is  not  ground  for  a 
reversal  where  the  answer  to  the  question  did  not  prejudice  his 
substantial  rights.* 

1  McCann  v.  People,  3  Park.  Crim.  Eep.  272. 

2  Gunter  v.  State,  83  Ala.  96;  Eeed  v.  State,  62  Miss.  405;  Tingley  v. 
Cowgill,  48  Mo.  291;  Woodbury  v.  Obear,  7  Gray,  467;  Kempsey  v. 
McGinniss,  21  Mich.  123;  Coyle  v.  Com.  104  Pa.  117;  Bennett  v.  State,  57 
Wis.  67;  Dexter  v.  Hall,  82  U.  S.  15  WaU.  9,  21  L.  ed.  73;  United  States  v. 
McGlue,  1  Curt.  C.  C.  1. 

3  State  v.  Maier,  36  W.  Va.  757. 

4  McCarty  v.  Com.  14  By.  L.  Eep.  285;  Choice  v.  State,  31  Ga.  424; 
Negroes  Jerry  v.  Townshend,  9  Md.  145;  State  v.  Coleman,  20  S.  C.  441; 
Kerr  v.  Lunsford,  31  W.  Va.  680,  2  L.  E.  A.  668;  McMechen  v.  McMechen, 
17  W.  Va.  683,  41  Am.  Eep.  682;  Doe,  Bainbrigge,  v.  Bainbrigge,  4  Cox, 
C.  C.  454;  Eeg.  v.  Frances,  4  Cox,  C.  C.  57.  Overruling  McNaughten'a 
Case,  1  Car.  &  K.  130,  note. 

6  Eeed  v.  State,  62  Miss.  408. 

6  Price  v.  Eichmond  &  D.  E.  Co.  38  S.  C.  199. 

1  Choice  v.  State,  31  Ga.  424. 

8  McCarty  v.  Com.  14  Ky.  L.  Eep.  285;  Jones  v.  People,  23  Colo.  276. 


542  MEDICAL   JURISPRUDENCE   OF   INSANITY. 

So,  the  rule  has  been  laid  down  that  an  expert  witness  cannot 
be  allowed  to  give  an  opinion  as  to  the  sanity  or  insanity  of  a 
person  based  upon  the  evidence  he  had  heard  alone  when  he  had 
not  heard  it  all,1  where  there  was  no  hypothetical  case  or  agreed 
state  of  facts  submitted  to  him,2  or  where  it  does  not  appear 
what  part  of  it  he  did  hear.3  But  it  has  been  held,  upon  the 
other  hand,  that  expert  witnesses  who  did  not  hear  all  of  the 
testimony  tending  to  show  the  mental  condition  of  the  accused 
may  give  an  opinion  founded  upon  the  proof  heard  by  them.* 
But  he  must  first  be  made  acquainted  with  the  whole  of  it  upon 
which  he  is  to  pronounce  his  opinion.5  The  JSTew  York  rule  has 
been  stated  to  be  that  an  expert  cannot  give  a  general  opinion  as- 
to  sanity  or  insanity,  but  should  simply  state  what  the  facts 
proved  or  claimed  to  be  proved  indicate  as  to  the  mental  con- 
dition of  the  party  in  question.6  An  opinion  of  a  medical  expert 
given  on  a  former  trial  is  not  rendered  inadmissible  on  a  subse- 
quent one  by  the  fact  that  new  matters  were  introduced  on  the 
second  trial  concerning  which  no  cross-examination  was  had.7 

§  4.   Opinions  upon  hypothetical  questions. 

The  rule  admitting  the  opinions  of  expert  witnesses  based  on 
hypothetical  questions  or  statements  of  the  facts,  as  to  sanity  or 
insanity,  would  seem  to  be  practically  if  not  entirely  universal/ 
And  a  physician  may  give  his  opinion  as  to  sanity  or  insanity 
upon  the  basis  of  a  hypothetical  case,  together  with  what  he  has 
learned  upon  a  personal  examination.9     Questions  put  to  medi- 

1  Brown  v.  Com.  14  Bush,  398;  Webb  v.  State,  9  Tex.  App.  490;  People- 
v.  Thurston,  2  Park.  Crim.  Kep.  49. 

2  Brown  v.  Com.  14  Bush,  398. 

3  Kempsey  v.  McGinniss,  21  Mich.  123. 

*  People  v.  Lake,  12  N.  T.  358;  Lake  v.  People,  1  Park.  Crim.  Eep.  495;. 
State  v.  Gould,  40  Kan.  258. 

5  Yardley  v.  Cuthbertson,  108  Pa.  395,  56  Am.  Bep.  218. 

6  People  v.  Lake,  12  N.  T.  358. 

7  First  Nat.  Bank  v.  Wirebach,  106  Pa.  37. 

8  See  Pittard  v.  Foster,  12  111.  App.  132;  People  v.  Thurston,  2  Park. 
Crim.  Bep.  49;  Lake  v.  People,  1  Park.  Crim.  Bep.  495;  Hathaway  v. 
National  L.  Ins.  Co.  48  Vt.  336;  Webb  v.  State,  9  Tex.  App.  490;  Dexter 
v.  Hall,  82  U.  S.  15  WaU.  9,  21  L.  ed.  73. 

9  State  v.  Wright,  134  Mo.  404. 


EVIDENCE    OF    INSANITY.  543 

cal  experts  upon  the  issue  of  insanity  should  be  so  framed  as  to 
require  them  to  state  the  measure  of  capacity  in  their  own 
language,  and  by  such  ordinary  terms  and  forms  of  expression 
as  will  best  convey  their  ideas  to  the  jury.1  And  the  hypothesis 
must  be  clearly  stated,  so  that  the  jury  may  know  with  certainty 
upon  what  state  of  assumed  facts  they  base  their  opinions;2 
and  be  so  framed  as  to  fairly  reflect  facts  either  admitted  or 
proved  by  other  witnesses,  and  must  not  assume  as  proved  that, 
which  has  not  been.3  And  there  must  have  been  evidence  tend- 
ing to  show  every  supposed  fact  embraced  within  them.4  Hypo- 
thetical questions  are  not  competent  when  not  based  on  facts 
proved,  but  consist  largely  of  deductions  drawn-  from  the  char- 
acter of  the  act  in  question.6  .Nor  can  experts  be  asked  questions 
which  assume  the  existence  of  a  delusion  in  the  absence  of  evi- 
dence to  support  the  assumption."  And  a  hypothetical  question 
in  a  will  contest,  assuming  that  a  remark  of  a  testator  concerning 
his  desire  to  visit  his  sister  if  he  knew  where  she  lived  referred 
to  a  sister  who  had  been  dead  for  many  years  rather  than  to  a  liv- 
ing sister,  is  objectionable  and  inadmissible.7  The  hypothesis 
must  be  based  on  facts  admitted  or  established,  or  which,  if  con- 
troverted, the  jury  might  legitimately  find  on  weighing  the  evi- 
dence.8 And  it  cannot  be  based  on  conclusions  of  fact  which 
can  only  be  found  by  a  jury.' 

Technical  accuracy,  however,  is  not  required,  and  the  question 


1  Fairchild  v.  Bascomb,  35  Vt.  398. 

2  Kerr  v.  Lunsford,  31  W.  Va.  680,  2  L.  E.  A.  668;  McMechen  v. 
McMeehen,  17  W.  Va.  683,  41  Am.  Eep.  682.  And  see  Ee  Barber,  63 
Conn.  393,  22  L.  E.  A.  90. 

3  Ballard  v.  State,  19  Neb.  610.  And  see  Davis  v.  State,  35  Ind.  496,  9 
Am.  Eep.  760. 

4  Hathaway  v.  National  L.  Ins.  Co.  48  Vt.  336;  Prather  v.  McLelland,  76 
Tex.  574;   Ee  Ames,  51  Iowa,  596;   Fraser  v.  Jennison,  42  Mich.  206. 

B  Vance  v.  Upson,  66  Tex.  476;  Van  Deusen  v.  Newcomer,  40  Mich.  90. 
And  see  State  v.  Scott,  41  Minn.  365. 
6  State  v.  Scott,  41  Minn.  365. 
1  Carpenter  v.  Bailey,  94  Cal.  406. 

8  People  v.  Augsbury,  97  N.  Y.  501;  Ee  Mason,  60  Hun,  46;  Ec  Norman, 
72  Iowa,  84. 

9  Ballard  v.  State,  19  Neb.  610. 


544  MEDICAL  JURISPRUDENCE   OF   INSANITY. 

need  not  be  based  on  decided  facts.1  It  is  not  a  question  as  to 
the  weight  of  the  evidence,  but  rather  one  as  to  whether  there 
was  any  evidence  tending  to  prove  the  fact  upon  which  the  ques- 
tion is  based.2  And  if  it  substantially  embraces  the  facts  relating 
to  the  subject  as  disclosed  by  the  evidence,  it  is  sufficient.3  But 
it  must  not  go  outside  of  the  facts  as  to  which  some  evidence  has 
been  given,  and  which  therefore  could  be  assumed  as  the  possible 
truth,4  though  answers  to  hypothetical  questions  are  not  objec- 
tionable because  they  include  considerations  not  referred  to  in 
the  questions  as  constituting  the  basis  of  an  opinion  given,  where 
they  are  such  as  the  testimony  tends  to  prove  and  as  might  have 
been  properly  included  in  the  questions.5  And  all  the  facts  upon 
both  sides  of  the  issue  should  not  be  incorporated  in  one  question 
where  they  are  conflicting ;  in  such  case  the  expert's  attention 
should  be  called  to  their  opposing  tendency  with  a  view  to  obtain- 
ing an  explanation  from  the  use  of  his  skill.6  But  counsel  may 
base  the  hypothesis  on  a  state  of  facts  which  the  evidence  tends 
to  prove  according  to  his  assumption,  and  in  accordance  with  his 
theory  of  them.7  And  it  is  a  question  for  the  jury  as  to  whether 
the  supposed  facts  stated  in  the  question  correspond  with  the  facts 
proved.6  And  whenever  it  supposes  facts  not  given  in  evidence 
it  should  be  disregarded,9  and  should  be  rejected  where  the 
hypothesis  is  not   proved   to   have  been  well   founded.10    And 

1  Meeker  v.  Meeker.  74  Iowa,  352;  Guetig  v.  State,  66  Ind.  94,  32  Am. 
Eep.  99. 

*  Be  Norman,  72  Iowa,  84;  Leache  v.  State,  22  Tex.  App.  279,  58  Am. 
Eep.  638. 

3  State  v.  Baber,  74  Mo.  292,  41  Am.  Eep.  314. 

4  People  v.  Smiler,  125  N.  T.  717. 

5  Hathaway  v.  National  L.  Ins.  Co.  48  Vt.  336. 

6  Fairchild  v.  Bascomb,  35  Vt.  398.  But  see  Webb  v.  State,  9  Tex.  App. 
430. 

'  Goodwin  v.  State,  96  Ind.  550;  Bever  v.  Spangler,  93  Iowa,  576;  Kerr 
v.  Lunsford,  31  W.Va.  680,  2  L.  E.  A.  668.  And  see  Prentis  v.  Bates,  93 
Mich.  234,  17  L.  E.  A.  494. 

;  People  v.  Thurston,  2  Park.  Crim.  Eep.  49;  Lake  v.  People,  1  Park. 
Crim.  Eep.  495;  State  v.  Baber,  74  Mo.  292,  41  Am.  Eep.  314;  State  v. 
Pagels,  92  Mo.  300. 

?  State  v.  Pagels,  92  Mo.  300. 

,0Cornwell  v.  Biker,  2  Dem.  354;  Hovey  v.  Chase,  52  Me.  305,  83  Am. 
Dec.  514. 


EVIDENCE    OF    INSANITY.  545 

the  jury  is  not  to  take  it  for  granted  that  the  statements  con- 
tained in  hypothetical  questions  are  true,  but  is  to  carefully  scru- 
tinize the  evidence  and  determine  from  it  what  facts  are  true  and 
what  untrue.1 

So,  while  all  facts  should  be  excluded  from  a  hypothetical 
question  of  the  existence  of  which  the  jury  can  judge  as  well  as 
the  expert,2  no  portion  of  the  actual  history  of  the  case  of  which 
evidence  has  been  given,  and  which,  taken  in  connection  with  the 
other  circumstances,  is  proper  to  be  considered  as  showing  the 
mental  condition,  should  be  excluded  on  the  ground  that  it  has 
no  tendency  of  itself  to  support  the  claim  of  insanity.3  And  the 
question  must  be  founded  on  a  given  state  of  facts  embracing  all 
the  facts  relied  upon  to  show  the  theory  claimed.4  So,  hypotheti- 
cal questions  founded  upon  the  testimony  of  witnesses  previously 
examined  must  be  so  shaped  as  to  give  the  expert  no  occasion  to 
draw  his  conclusion  from  the  evidence,  and  from  such  conclusion 
express  his  opinion,  or  to  decide  as  to  the  weight  of  evidence  or 
the  credibility  of  witnesses,  and  his  answers  must  be  such  as  not 
to  involve  such  a  conclusion  or  such  an  opinion,6  such  a  determi- 
nation operating  as  an  encroachment  upon  the  functions  and 
province  of  the  jury.8  And  the  contestants  of  a  will  cannot  intro- 
duce contradictory  evidence  upon  a  given  point  and  then  base 
hypothetical  questions  upon  the  theory  that  some  of  the  witnesses 
are  correct  and  some  mistaken.7  So,  a  hypothetical  question 
covering  many  things  of  which  there  is  no  proof  or  offer  of  proof, 
and  conditions  not  necessarily  indicating  insanity,  going  into  the 
history,  eccentricities,  and  physical  condition  and  personal  traits 

1  Guetig  v.  State,  66  Incl.  94,  32  Am.  Eep.  99. 

2  Prentis  v.  Bates,  83  Mich.  567. 

3  Prentis  v.  Bates,  93  Mich.  234,  17  L.  E.  A.  494;  Bever  v.  Spangler,  93 
Iowa,  576. 

4  Lake  v.  People,  1  Park.  Crirn.  Eep.  495;  McCullough's  Will,  35  Pittsb. 
L.  J.  169;  Webb  v.  State,  9  Tex.  App.  490. 

5  Kerr  v.  Lunsford,  31  W.  Va.  680,  2  L.  E.  A.  668;  McMechen  v.  Mc- 
Mecben,  17  W.Va.  683,  41  Am.  Eep.  682;  Smitb  v.  Hickenbottom,  57  Iowa, 
733;  Com.  v.  Eogers,  7  Met.  500,  41  Am.  Dec.  458;  Kempsey  v.  McGinniss, 
21  Micb.  123;   Dexter  v.  Hall,  82  U.  S.  15  Wall.  9,  21  L.  ed.  73. 

6  Kempsey  v.  McGinniss,  21  Mich.  123. 
■>  Prentis  v.  Bates,  88  Mich.  567. 

35 


546 


MEDICAL    JURISPRUDENCE    OF    INSANITY. 


of  the  person  whose  sanity  is  in  question,  and  his  relatives,  is 
objectionable  as  tending  to  lead  the  jury  to  suppose  that  each  of 
the  enumerated  circumstances  indicated  insanity.1  Nor  is  it 
proper  or  competent  to  predicate  a  hypothetical  question  upon 
all  the  evidence  in  the  case,  whether  the  witness  had  heard  it 
all  or  not,  upon  the  assumption  that  he  recollects  it,  as  it  would 
be  impossible  for  the  jury  to  determine  the  facts  upon  which  such 
opinion  was  based,  and  whether  such  facts  were  proved  or  not.* 

§  5.   Qualification  of  experts. 

A  general  knowledge  as  a  medical  man,  at  least,  is  required  to 
enable  one  to  testify  as  an  expert  in  questions  pertaining  to  in- 
sanity.3 Persons  of  scientific  training  upon  the  subject,  and  phy- 
sicians only,  have  been  regarded  as  experts.4  A  witness  does  not 
qualify  himself  to  give  his  opinion  as  to  the  sanity  of  a  person  as 
an  expert  by  testimony  that  he  had  observed  his  eyes  while  in 
court,  and  that  he  had  been  a  good  deal  with  insane  persons  and 
noticed  their  eyes,  where  it  does  not  appear  in  what  capacity  he 
came  in  contact  with  insane  persons  or  what  opportunities  for 
observation  he  had.5  Xor  is  one  qualified  by  testimony  that  he 
had  had  experience  with  men  claimed  to  be  insane  and  had  taken 
charge  of  them  and  taken  care  of  them.6  And  a  witness  who 
had  several  years  before  been  the  physician  of  a  person  whose 
sanity  was  questioned  for  a  short  time,  but  had  not  seen  him  for 
a  considerable  period  and  had  no  knowledge  of  his  condition  at 
the  time  of  the  act  in  question,  is  not  competent  to  give  an  opin- 
ion as  to  his  sanity  at  that  time.7  As  a  general  rule,  however, 
physicians  and  surgeons  of  practice  and  experience  are  experts 
upon  the  question  of  sanity  or  insanity,  and  it  is  not  necessary 
that  they  should  have  made  the  particular  disease  involved  in  the 
inquiry  a  specialty  to  render  their  testimony  admissible  as  that  of 

1  Fraser  v.  Jennison,  42  Mich.  206. 
'  People  v.  McElvaine,  121  N.  T.  250. 
s  State  v.  Crisp,  126  Mo.  605. 

4  Com.  v.  Braynian,  136  Mass.  438. 

5  McLeod  v.  State,  31  Tex.  Crim.  Rep.  331. 

6  State  v.  Crisp,  126  Mo.  605. 

;  Russell  v.  State,  53  Miss.  367. 


EVIDENCE    OF    INSANITY.  547 

experts.'     And  physicians  of  experience  who  had  been  the  medi- 
cal advisers  of  the  person  whose  sanity  is  in  question,  and  who 
saw  and  conversed  with  him  a  short  time  before  the  act  in  ques- 
tion, are  competent  to  give  opinions  as  to  his  sanity  though  they 
had  not  made  mental  diseases  a  special  study.'     So,  physicians 
who  Lnew  the  accused  m  a  criminal  prosecution  personally,  and 
who  observed  him  in  jail  after  the  commission  of  the  offense  and 
who  had  a  fair  portion  of  such  cases  under  treatment  in  the 
course  of  their  practice,  may  be  permitted  to  give  opinions  as  to 
his  mental  condition,  though  they  did  not  profess  to  be  experts.3 
And  where  epileptic  insanity  is  alleged  an  expert  who  had  seen 
the  accused  within  an  hour  after  the  offense  may  give  an  opinion 
as  to  whether  there  were  any  indications  in  his  appearance  of  a 
recent  epileptic  attack;    and  evidence  by  a  physician  called   by 
both  parties  who  said  that  he  had  been  in  practice  for  seventeen 
years  cannot  be  objected  to  when  testifying  as  an  expert  upon  the 
ground  that  he  was  not  proved  to  be  one.4 

So  the  evidence  of  an  expert  in  mental  diseases,  in  a  will  con- 
test, that  the  person  whose  sanity  was  questioned  was  insane,  is 
not  rendered  incompetent  by  the  fact  that  he  had  testified  that 
he  was  ignorant  of  the  effect  of  a  certain  disease  included  in  the 
facts  assumed  in  questioning  him/     And  a  practising  physician 
of  twenty-eight  years'  standing,  in  charge  of  an  institution  for 
the  feeble  minded,  who  had  studied  the  disease  of  insanity  suf- 
ficiently to  give  a  medical  opinion  and  to  diagnose  a  case  of  in- 
sanity, is  competent  on  that  question,  the  extend  of  his  experience 
and  learning  acting  on  his  credibility  and  not  on  his  competency  • 
feo,  the  testimony  of  a  person's  family  physician,  describing  his 
apparent  physical  condition  and  stating  that  he  appeared  as  if  in 
the  last  stages  of  second  childhood,  is  admissible,  though  he  was 
not  an  expert  m  mental  diseases  and  had  not  attended  him  for 
ten  years  previous  to  his  death  and   had  only  seen  him  a  few 

^'Hathaway  y.  National  L.  Ins.  Co.  48  Vt.  336;  State  v.  Keddick,  7  Kan. 

2  Hastings  v.  Eider,  99  Mass.  624;   Baxter  v.  Abbott,  7  Gray,  71      And 
Bee  Hathorn  v.  King,  8  Mass.  371,  5  Am.  Dec.  106. 

3  Phelps  v.  Com.  17  Ky.  L.  Rep.  706. 

4  Wheelock  v.  Godfrey,  100  Cal.  578. 

5  Nash  v.  Hunt,  116  Mass.  237. 

6  Montgomery  v.  Com.  88  Ky.  509. 


548  MEDICAL   JUKISPKUDENOE    OF   INSANITY. 

times  for  a  number  of  years.1  So,  physicians  in  general  practice 
and  nurses  are  competent  witnesses  on  the  question  whether  pul- 
monary diseases,  nervous  derangements,  and  general  debility 
would  in  the  progress  of  the  disease  impair  the  mental  powers  of 
the  afflicted  person.2  And  proof  that  a  witness  had  been  a  nurse 
in  an  insane  asylum  for  many  years,  and  had  had  extended  ex- 
perience in  nursing  the  insane,  and  that  she  conversed  with  the 
person  whose  sanity  is  questioned  for  an  hour  or  two  at  a  time 
on  three  different  occasions,  is  sufficient  to  lay  a  foundation  for 
her  opinion  as  to  such  person's  sanity  or  insanity.3  And  a  .Roman 
Catholic  priest  regularly  educated,  who  officiated  as  such  for  ten 
years,  part  of  his  preparatory  education  being  designed  to  make 
him  competent  to  pass  upon  the  mental  condition  of  communi- 
cants in  his  church  to  the  end  that  he  might  administer  the  nights 
of  the  church  to  invalids  or  dying  persons  when  they  were  in  a 
proper  state  of  reason,  is  properly  qualified  to  express  such  an 
opinion  with  reference  to  the  persons  whom  he  attends.4 

The  rule  that  skilled  and  reputable  physicians  may  testify  to 
the  mental  conditions  of  their  patients  when  they  have  had  ade- 
quate opportunity  of  observing  and  judging  of  their  mental  quali- 
ties, however,  does  not  apply  to  one  who  was  not  an  attending 
physician  and  had  made  but  a  single  examination  pendente  lite  in 
order  to  inform  himself  as  a  witness.5  And  a  person,  though  he 
be  a  graduate  in  medicine  and  a  practising  physician,  who  is  not 
conversant  with  insanity  in  any  of  its  various  forms,  and  who 
never  had  the  care  and  superintendence  of  insane  persons  or 
made  the  subject  of  mental  disease  a  study,  has  been  held  to  be 
incompetent  to  express  his  opinion  upon  the  evidence  given  upon 
an  issue  as  to  sanity  or  insanity.6  And  twenty  years  of  medical 
experience  confined  to  the  ordinary  business  of  a  country  prac- 
titioner has  been  held  to  be  insufficient  to  qualify  one  to  testify 
as  an  expert  upon  hypothetical  questions  as  to  supposed  facts  of 
which  he  had  no  personal  knowledge.7     So,  a  physician  who  had 

1  Lewis  v.  Mason,  109  Mass.  169. 

2  Fail-child  v.  Bascomb,  35  Vt.  398. 

3  Foster  t.  Diekerson,  64  Vt.  233. 

4  Toomes's  Estate,  54  Cal.  509,  35  Am.  Rep.  83. 

6  Fayette  v.  Ckesterville,  77  Me.  28,  52  Am.  Rep.  741. 

6  Reed  v.  State,  62  Miss.  405. 

7  Russell  y.  State,  53  Miss.  367. 


EVIDENCE    OF    INSANITY.  549 

not  made  a  special  study  of  insanity,  and  had  considered  the  mat- 
ter only  so  far  as  to  determine  whether  a  patient  required  treat- 
ment for  insanity  or  not,  and  if  so  to  call  in  the  services  of  a  phy- 
sician who  had  made  a  special  study  of  the  subject,  or  recommend 
the  removal  of  the  patient  to  a  hospital  for  the  treatment  of  the 
insane,  cannot  be  regarded  as  an  expert  on  the  question  of  insan- 
ity upon  an  hypothetical  case.1  And  the  rule  has  been  laid  down 
generally  that  to  qualify  a  witness  to  testify  as  an  expert  it  is 
essential  that  he  be  or  profess  to  be  an  expert  on  the  general  sub- 
ject of  insanity,  and  that  acquaintance  with  cognate  subjects  will 
not  suffice  unless  the  matter  inquired  about  is  common  to  both,2  and 
that  the  opinion  of  a  witness  may  be  excluded  where  he  testifies 
that  he  had  not  made  diseases  of  the  mind  a  special  study.3  The 
question  as  to  the  competency  of  a  witness  offered  as  an  expert 
on  the  question  of  sanity  or  insanity  is  one  for  the  decision  of  the 
court  alone,  the  opinion  of  the  witness  himself  being  immaterial.4 
And  the  decision  is  usually  final  though  it  may  be  reviewed  in 
extreme  cases,  where  a  serious  mistake  has  been  committed  from 
some  accident,  hindrance,  or  misconception,'11  and  when  the  wit- 
ness is  permitted  to  testify  he  •  stands  substantially  on  the 
same  footing  as  to  credibility  as  any  other  witness.6  And  wit- 
nesses will  be  presumed  on  appeal  to  have  been  experts 
on  a  subject  in  regard  to  which  they  were  inquired  of  where 
nothing  is  shown  to  the  contrary.7  And  after  a  lapse  of  thirty 
years  it  will  be  presumed  that  visits  required  by  statute  to  be 
made  to  a  lunatic  asylum  by  medical  attendants  were  duly  made, 
and  that  the  examinations  were  properly  conducted  and  the  opin- 
ions of  such  attendants  as  to  the  sanity  of  a  party  then  residing 
in  an  asylum  visited  are  admissible  on  that  issue  when  formed 
from  such  visits,  though  the  scope  of  their  official  duty  was  rather 
as  to  hygiene  than  as  to  sanity.8 

1  Com.  v.  Rich,  14  Gray,  335. 

2  Russell  v.  State,  53  Miss.  367. 

s  Hutchins  v.  Ford,  82  Me.  363.     And  see  Fairchild  v.  Bascomb,  35  Vt. 
398. 

4  Boardman  v.  Woodman,  47  N.  H.  120;  Eggers  v.  Eggers,  57  Ind.  461; 
Fayette  v.  Chesterville,  77  Me.  28,  52  Am.  Rep.  741. 

5  Fayette  v.  Chesterville,  77  Me.  28,  52  Am.  Rep.  741. 

6  Eggers  v.  Eggers,  57  Ind.  461. 

7  Melendy  v.  Spaulding,  54  Vt.  517. 

s  Martin  v.  Johnston,  1  Fost.  &  F.  122. 


550  MEDICAL    JCKISPKUDEJSfCE    OF    INSANITY. 

§  6.  Scope  of  opinion  of  experts. 

A  proper  form  of  a  question  asked  an  expert  witness  on  the 
question  of  sanity  or  insanity  is.  Was  the  person  of  sound  or  un- 
sound mind  ? 1  And  a  witness  competent  to  give  his  opinion  as  to 
the  mental  condition  of  a  person  may  state  it  as  to  the  degree  of 
capacity  or  incapacity  of  a  person  by  reason  of  a  disorder  with 
which  he  is  afflicted,  and  whether  the  disorder  seems  to  have 
rendered  him  insane.2  Nor  is  it  improper  to  ask  an  expert  if  he 
had  discovered  anything  that  led  him  to  think  the  person  in 
question  was  insane,  though  it  is  not  claimed  that  his  insanity 
was  of  a  type  which  manifested  itself  in  paroxysms  or  frenzy.3 
And  he  may  be  asked  in  a  will  contest  whether  the  testator  was 
in  a  mental  and  physical  condition  to  transact  any  business 
requiring  an  exercise  of  judgment  and  reason  and  a  consecutive 
continuance  of  thought.4  So,  an  expert  who  had  given  his 
opinion  on  a  hypothetical  question  as  to  mental  unsoundness 
may  be  asked  in  regard  to  the  state  and  degree  then  indicated, 
and  how  it  would  disqualify  the  person  from  business  or  render 
him  unconscious  of  the  nature  of  his  conduct ;  and  he  should  be 
inquired  of  as  to  whether  the  facts  are  explainable  in  any  other 
mode  than  upon  the  theory  of  insanity,  and  with  what  degree  of 
certainty  they  indicate  the  inference  drawn.5  And  he  may  be 
asked  if,  supposing  a  man  had  inherited  a  predisposition  to 
insanity,  great  mental  anxiety  and  great  misfortunes  would  be 
likely  to  develop  the  disease.6  And  where  epileptic  insanity  is 
alleged  in  a  criminal  prosecution  he  may  give  his  opinion  as  to 
the  effect  of  epilepsy  upon  the  memory,  and  an  opinion  as  to  the 
person's  power  of  memory  from  the  nature  and  course  of  his 
narrative  on  the  witness  stand  as  an  illustration  ; 7  or  as  to  whether 
paralysis  tends  to  impair  the  mind  in  age.8     But  he  cannot  be 

1  Pannell  v.  Com.  86  Pa.  260;  Schneider  v.  Manning,  121  HI.  376.     And 
see  Kempsey  v.  McGinniss,  21  Mich.  123. 

2  United  States  v.  Guiteau,  1  Mackey,  498,  47  Am.  Rep.  247. 

3  Pannell  v.  Com.  86  Pa.  260. 

4  Kempsey  v.  McGinniss,  21  Mich.  123.     And  see  McClintock  v.  Curd, 
32  Mo.  419." 

k  Eeed  v.  State,  62  Miss.  405. 
6  Dejarnette  v.  Com.  75  Va.  867. 
1  Com.  v.  Buccieri,  153  Pa.  535. 
8  Lord  v.  Beard,  79  N.  C.  5. 


EVIDENCE    OF    INSANITl.  551 

asked  whether  certain  mental  troubles  would  constitute  a  sufficient 
cause  to  produce  insanity,  the  issue  being  whether  the  defendant 
was  insane  and  not  what  would  be  sufficient  to  produce  insanity.' 
ISTor  can  a  medical  expert  be  asked  on  his  examination  in  chief 
what  he  considers  some  of  the  commonest  and  most  frequent 
causes  of  epilepsy  and  insanity."  A  practicable  mode  of  exam- 
ining an  expert  witness  upon  the  question  of  insanity  is  to  inquire 
as  to  the  particular  symptoms  of  insanity,  asking  whether  all  or 
any,  and  which,  of  the  circumstances  spoken  of  upon  the  trial 
should  be  regarded  as  such  symptoms,  and  to  inquire  whether 
any,  and  what,  combination  of  these  circumstances  would  amount 
to  proof  of  insanity.3  And  an  expert  witness  may  give  his  opinion 
on  a  hypothetical  statement  as  to  what  the  symptoms  of  insanity 
are,  the  question  as  to  whether  such  facts  existed  or  such  symp- 
toms are  proved  being  left  exclusively  to  the  jury ; 4  and  state 
whether  a  certain  trait  of  character  was  a  vice  or  a  disease,  the 
question  whether  it  was  an  indication  of  insanity  involving  the 
question  of  its  nature.5  But  questions  as  to  whether  certain  speci- 
fied symptoms  in  connection  with  other  testimony  not  specified  do 
not  specifically  indicate  unsoundness  of  mind  are  improper."  And 
refusal  to  permit  him  to  explain  to  the  jury  the  structure  of  the 
brain,  what  changes  are  produced  upon  it  by  bodily  disease,  and  how 
irritation  and  inflammation  affect  it,  and  the  manner  in  which  a 
person  with  a  diseased  brain  might  be  induced  to  act,  is  not  error, 
where  he  is  permitted  to  state  his  opinion  that  the  person  was 
insane.7  So,  a  question  as  to  whether  in  the  opinion  of  an  expert 
the  person  might  have  recovered  his  sanity,  assuming  his  con- 
dition to  have  been  as  stated  by  another  expert,  calls  for  his 
opinion  upon  the  facts  stated,  and  not  upon  such  facts  combined 
with  his  opinion,  and  is  therefore  competent.8  But  medical 
experts  cannot  give  their  opinions  as  to  the  value  of  the  opinion 

1  Carter  v.  State,  56  Ga.  463. 

2  Hall  v.  Com.  22  W.  N.  C.  25. 

3  McCann  v.  People,  3  Park.  Crim.  Kep.  272. 

4  Lake  v.  People,  1  Park.  Crim.  Kep.  495. 

5  United  States  v.  Guiteau,  1  Mackey,  498,  47  Am.  Eep.  247. 

6  Ee  Storer,  28  Minn.  9. 

1  Anderson  v.   State,  42  Ga.  9.     And  see  Davis  v.  United  States,  165 
U.  S.  373,  41  L.  ed.  750. 
8  Foster  v.  Dickerson,  64  Vt.  233. 


552  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

on  such  a  question  of  a  witness  not  an  expert.1  So,  it  is  proper 
in  a  prosecution  for  homicide  to  ask  a  medical  expert  if  there  is 
any  known  form  of  insanity  where  the  mind  occasionally  becomes 
a  blank,  such  question  calling  for  a  fact  and  not  being  of  a  nature 
rendering  hypothesis  necessary.2  And  he  may  testify  in  a  prose- 
cution for  homicide  against  one  who  killed  a  person  who  suddenly 
awoke  him  from  a  sound  sleep,3  that  persons  asleep  sometimes 
act  as  if  awake,  and  do  many  things  of  which  they  are  uncon- 
scious, and  that  with  many  there  is  a  period  between  sleeping 
and  waking  in  which  they  are  unconscious,  which  may  be  caused 
by  loss  of  sleep  or  other  causes  producing  nervous  depression  or 
mental  anxiety.  And  he  may  be  asked  whether,  supposing 
a  man  imagined  that  someone  was  at  his  door  when  there  had 
been  no  sound,  and  seized  his  gun  and  went  out,  afterwards 
asserting  that  he  chased  a  relative  of  the  family  away  from  his 
door  when  no  one  in  fact  had  been  there,  it  would  indicate  in  his 
opinion  that  he  was  sane  or  insane.4 

Unless  the  jury  treat  physical  or  mental  manifestations  given 
in  evidence  as  facts,  however,  they  cannot  treat  as  evidence  the 
opinions  of  professional  witnesses  based  thereon.6  And  an  expert 
witness  cannot  be  asked  questions  calling  for  conclusions  based 
upon  facts  not  stated,6  or  upon  facts  standing  alone  having  no 
tendency  to  show  insanity,7  or  upon  incompetent  evidence,*  or  upon 
hearsay,9  or  upon  the  opinions  of  others,10  or  upon  representations 
made  to  him  by  the  family  and  physician  of  a  person  whose 
sanity  is  in  question,11  or  based  in  part  upon  his  own  examination 
but  mainly  upon  what  he  was  told  for  the  purpose  of  examina- 

I  People  v.  Webster,  59  Hun,  398. 

*  People  v.  Osmond,  138  N.  Y.  80. 

3  Fain  v.  Com.  78  Ky.  183,  39  Am.  Eep.  213. 

4  Rush  v.  Megee,  36  Ind.  69. 

5  Kempsey  v.  McGinniss,  21  Mich.  123. 

6  Van  Deusen  v.  Newcomer,  40  Mich.  90;  Bomgardner  v.  Andrews,  55 
Iowa,  638. 

•  Prentis  v.  Bates,  88  Mich.  567. 

8  Helad  v.  Thing,  45  Me.  392;  People  v.  Hawkins,  109  N.  Y.  408. 

9  Conely  v.  McDonald,  40  Mich.  150;  People  v.  Holmes  (Mich.)  69  N.W. 
501. 

10  Barber's  Appeal,  63  Conn.  393,  22  L.  R.  A.  90. 

II  Helad  v.  Thing,  45  Me.  392;  United  States  v.  Faulkner,  35  Fed. Eep.  730. 


EVIDENCE    OF    INSANITY.  553 

tion;'  nor  are  such  representations  admissible  as  a  basis  for  the 
opinion.2  And  he  cannot  testify  as  to  a  particular  case  claimed 
to  be  an  analogous  one.3  And  an  account  received  from  the 
maniac  or  an  unprofessional  nurse  as  to  the  development  of  his 
disease  is  not  admissible  for  that  purpose.'  Nor  can  the  superin- 
tendent of  an  insane  asylum  after  the  death  of  the  patient  whom 
he  never  saw  give  testimony  based  upon  the  absence  from  the 
records  of  the  asylum  of  things  which  he  claimed  would  un- 
doubtedly have  been  noticed  if  they  had  existed."  But  all  things 
properly  admitted  in  evidence  to  show  the  mental  condition  of  a 
person  may  be  considered  in  forming  an  opinion,6  and  a  record 
of  the  condition  and  treatment  of  a  patient  in  a  hospital,  pro- 
duced by  the  superintendent  as  a  part  of  a  series  of  records  of 
which  he  is  the  official  custodian,  and  purporting  to  have  been 
contemporaneously  made  by  the  attending  physician  in  the  per. 
formance  of  his  duties,  is  admissible  as  a  foundation  for  the 
opinion  of  an  expert  without  identifying  the  person  who  made  it.7 
So,  a  question  is  objectionable  which  assumes  a  state  of  facts 
upon  which  no  medical  or  expert  opinion  should  be  based.0  Thus, 
while  medical  experts  may  give  the  reasons  upon  which  their 
opinions  are  founded,9  inferences  from  facts  which  are  in  the 
range  of  ordinary  judgment  and  experience  are  to  be  drawn  by 
the  jury,  and  cannot  be  proved  as  facts  by  the  opinions  of  experts.10 
And  the  mere  doubt  of  an  expert  is  not  admissible.1'  Nor  can  a 
medical  witness  in  an  action  upon  an  insurance  policy  be  asked 
whether  he  would  attribute  the  suicide  of  the  insured  to  melan- 
cholia, assuming  that  he  had  that  form  of  insanity,  as  it  calls  for 

1  Wetherbee  v.  Wetherbee,  38  Vt.  454. 

2  Wetherbee  v.  Wetherbee,  38  Vt.  454. 

3  People  v.  Holmes  (Mich.)  69  N.  W.  501. 

4  Wood  v.  Sawyer,  Phill.  L.  259. 
6  Prentis  v.  Bates,  88  Mich.  567. 

*  Bever  v.  Spangler,  93  Iowa,  576. 

I  Townsend  v.  Pepperell,  99  Mass.  40. 

*  Thornton  v.  Thornton,  39  Vt.  122. 

■'  Leache  v.  State,  22  Tex.  App.  279,  58  Am.  Rep.  638.  And  see  Price  v. 
Richmond  &  D.  R.  Co.  38  S.  C.  199. 

1(1  People  v.  Barber,  115  N.  Y.  475;  Morrison  v.  Maciline,  24  Scotch  Sess. 
Cas.  626. 

II  Sanchez  v.  People,  22  N.  Y.  147. 


Ooi  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

no  information  peculiarly  within  the  knowledge  of  an  expert.1 

So.  it  is  not  for  an  expert  witness  to  testify  whether  particular 
conduct  not  in  itself  irrational  is  prompted  by  an  insane  delusion.' 
Xor  can  he  be  asked  if  rational  conduct  and  coherent  conversation 
are  not  the  best  evidence  of  a  lucid  interval,  especially  where  such 
conduct  and  conversation  relate  to  the  subject  of  the  delusion ; 
he  should  be  asked  whether  a  given  state  of  facts  tends  to  prove 
delusion  or  insanity.3  And  it  is  not  proper  to  ask  experts  to 
define  words  which  have  a  fixed  and  well-known  signification, 
such  as  monomania,  except  perhaps  upon  cross-examination.4  So, 
questions  asked  a  medical  expert  extending  over  an  almost  unlim- 
ited field  of  inquiry,  involving  a  discussion  of  the  law  of  insanity 
in  all  its  phases,  are  objectionable  as  consuming  the  time  of  the 
court  and  tending  to  confuse  and  mislead  the  jury.5  And  he  can- 
not be  asked  to  state  whether  the  evidence  introduced  by  the 
defendant,  in  connection  with  the  evidence  introduced,  by  the  plain- 
tiff, indicates  to  him  that  there  was  a  lucid  interval  at  the  time  of 
the  act  in  question.6  Nor  can  counsel  be  permitted  to  read  from 
a  medical  journal  to  an  expert  and  ask  him  whether  he  concurred 
in  the  views  there  expressed,  though  he  may  use  it  in  framing 
questions  to  the  jury.7  An  opinion  that  a  man  suffering  from 
delirium  tremens  has  no  more  control  over  his  actions  than  a  man 
suffering  from  any  other  delirium,  but  that  he  is  still  sane,  is  inad- 
missible as  directly  opposed  to  the  established  legal  rule.1  And 
the  admission  of  an  opinion  that  certain  acts  were  evidence  of 
delirium  is  harmless  error  where  it  is  common  knowledge  that 
such  acts  were  not  evidence  of  delirium  but  of  its  absence.9 

§  7.   Oross-GxcbiJiiTiatwvi  oj  experts. 

After  expert  witnesses  have  given  their  opinions  as  to  sanity 
or  insanity  upon  the  direct  examination,  inquiries  may  be  put  to 

1  Tan  Zandt  v.  Mutual  Ben.  L.  Ins.  Co.  55  N.  Y.  169,  14  Am.  Eep.  215. 

2  State  v.  Scott,  41  Minn.  365. 

3  Kush  v.  Megee,  36  Ind.  69. 

4  Goodwin  v.  State,  96  Ind.  550. 

5  Dejarnette  v.  Com.  75  Ya.  867. 

6  Rush  v.  Megee,  36  Ind.  69. 

1  State  v.  Coleman,  20  S.  C.  441. 

fi  French  v.  State,  93  Wis.  325. 

*  McHugh  v.  Fitzgerald,  103  Mich.  21. 


EVIDENCE    OF    INSANITY. 


555 


them  upon  cross-examination  tending  to  test  their  skill  and  capacity 
and  the  correctness  of  their  conclusions,  and  they  may  be  asked 
whether  certain  facts  already  sworn  to  did  not  furnish  evidence 
of  insanity,1  or  whether  or  not  certain  hypothetical  facts  would 
indicate  it.3  And  the  cross-examining  party  is  not  confined  to 
the  use  of  the  same  hypothetical  questions  as  had  been  used  on 
direct  examination.3  But  the  expert  may  be  asked  an  opinion 
on  any  other  state  of  facts  assumed  by  him  to  have  been  proved, 
or  upon  a  hypothetical  case  based  upon  such  facts.4  Thus,  a  wit- 
ness in  a  criminal  prosecution  who  had  testified  to  certain  facts 
in  the  history  of  the  accused  having  a  tendency  to  bring  on  a  dis- 
eased condition  of  the  brain  may  be  asked  by  the  state  on  cross- 
examination  what  would  be  the  effect  in  his  opinion  of  the  injuries 
described,  both  as  a  means  of  testing  his  capacity  and  for  the  pur- 
pose of  eliciting  further  facts.5  And  a  witness  who  has  given  his 
opinion  that  the  accused  was  insane  may  be  asked  on  cross-exami- 
nation whether  in  his  opinion  he  knew  right  from  wrong  and  that 
it  would  be  wrong  for  him  to  commit  the  act,6  or  whether  he  had 
not  expressed  a  contrary  opinion.7  And  it  is  proper  upon  cross- 
examination  in  a  proceeding  in  the  nature  of  a  writ  de  lunatico 
inquirendo  to  show  that  an  expert  witness  testifying  against  the 
alleged  lunatic  obtained  admission  to  her  house  by  fraudulent 
means  without  her  consent  to  qualify  himself  as  a  witness/  So, 
expert  witnesses  may  be  cross-examined  on  purely  imaginary  and 
abstract  questions  assuming  facts  and  theories  which  may  or  may 
not  have  any  foundation  in  the  evidence,9  the  allowance  of  such 
questions  resting  in  the  sound  discretion  of  the  court,10  which  can- 
not be  reviewed  when  fairly  exercised.11     And  refusal  to  permit 

1  People  v.  Lake,  12  N.  Y.  358. 

2  People  v.  Sutton,  73  Cal.  243. 

3  Foster  v.  Dickerson,  64  Vt.  233. 

4  Grubb  v.  State,  117  Ind.  277;  People  v.  Lake,  12  N.  T.  358;  Davis  v. 
State,  35  Ind.  496,  9  Am.  Rep.  760. 

6  State  v.  Eeddick,  7  Kan.  143. 

6  Clark  v.  State,  12  Ohio,  483,  40  Am.  Dec.  481. 

I  Montgomery  v.  Com.  88  Ky.  509. 

8  Re  Mason,  60  Hun,  46. 

9  Bever  v.  Spangler,  93  Iowa,  576. 

II  Bever  v.  Spangler,  93  Iowa,  576;  People  v.  Augsbuiy,  97  X.  Y.  501. 
"  People  v.  Augsbury,  97  N.  Y.  501. 


556  MEDICAL    JUKISFKUDENCE    OF    INSANITY. 

an  expert  who  had  declared  his  opinion  as  to  the  existence  of 
recurrent  insanity  to  state  whether  he  could  give  any  illustration 
of  recurrent  insanity  which  had  come  within  his  own  personal 
experience  is  not  reversible  error.1 

But  expert  witnesses  cannot  be  asked  hypothetical  questions  on 
cross-examination  where  the  hypothesis  is  wholly  unsupported  by 
evidence.2  And  it  is  improper  to  select  a  few  facts  which  tend 
naturally  to  show  sanity,  and  ask  the  witness  whether  they  change 
his  opinion;  all  the  facts  bearing  upon  the  question  should  be 
included.3  And  where  the  direct  examination  was  limited  to 
expressions  of  opinion  as  to  the  correctness  of  the  theory  of  an 
expert  called  by  the  opposite  party,  the  witness  cannot  be  asked 
a  hypothetical  question  on  cross-examination  when  his  answer  if 
it  sustains  the  opposite  party's  views  would  have  sustained  a  part 
of  his  case.4  Xeither  can  an  expert  be  asked  on  cross-examination 
why  and  for  what  purpose  he  examined  the  person  whose  sanity 
was  in  question,5  though  objection  to  hypothetical  questions  on 
cross-examination  is  waived  if  not  taken  at  the  time.6  So,  a  ques- 
tion asked  an  expert  witness  upon  re-examination  in  a  will  contest 
in  which  insanity  is  alleged  without  repeating,  and  which  does 
not  include  the  hypothesis  stated  upon  the  direct  and  cross-exami- 
nation, is  legitimate  and  will  be  sustained  as  resting  upon  the 
hypothesis  thus  stated,  where  such  hypothesis  had  been  already 
referred  to  in  questions  previously  asked  him.7  And  requiring 
the  accused  in  a  criminal  prosecution  to  submit  his  hypothetical 
case  to  medical  experts  before  the  state's  rebutting  evidence  on 
the  question  of  sanity  is  given  is  not  error,  as  he  may,  upon  applL 
cation  to  the  court  after  the  state  has  finished,  re-examine  them 
upon  the  additional  evidence.8 

1  Leaeke  v.  State,  22  Tex.  App.  279,  58  Am.  Rep.  638. 

2  Kearney  v.  State,  68  Miss.  233. 

3  Prentis  v.  Bates.  88  Mich.  567. 

4  Gridley  v.  Boggs,  62  Cal.  190. 
*  Hall  v.  Com.  22  W.  N.  C.  25. 

6  Wbeelock  v.  Godfrey,  100  Cal.  578. 

7  MeGirmiss  v.  Keinpsey,  27  Mich.  3G3. 
6  Dove  v.  State,  3  Heisk.  318. 


EVIDENCE    OF    INSANITY.  557 

§  8.  General  rule  as  to  non  expert  opinions. 
The  unsupported  opinion  of  a  witness  with  relation  to  the 
sanit}'  or  insanity  of  a  person  is  not  admissible  in  evidence.'  And 
non  expert  witnesses  cannot  give  their  opinion  as  to  the  sanity  or 
insanity  of  a  person  based  upon  evidence  given  by  other  wit- 
nesses;3 nor  can  they  be  asked  hypothetical  questions  on  the 
question  of  sanity  or  insanity  based  upon  facts  not  within  their 
knowledge,3  even  upon  cross-examination.4  As  a  general  rule, 
however,  the  opinions  of  nonexpert  witnesses  upon  the  question 
of  sanity  or  insanity  are  admissible  in  evidence  when  based  upon 
facts,  circumstances,  or  conversations  with  the  person  within  their 
own  knowledge  and  observation  to  which  they  testify.  This  rule 
has  been  laid  down  generally.6     And  it  is  applied  in  prosecutions 

1  Grant  v.  Thompson,  4  Conn.  203, 10  Am.  Dec.  119;  Armstrong  v.  State, 
30  Fla.  170,  17  L.  R.  A.  484;  Turner  v.  Cook,  36  Ind.  129;  Kenwortky  v. 
Williams,  5  Ind.  375;  Shirleys  v.  Taylor,  5  B.  Mon.  99;  Hunt  v.  Hunt,  3 
B.  Mon.  575;  Goclden  v.  Burke,  35  La.  Ann.  160;  Townskend  v.  Town- 
skend,  7  Gill,  10;  Stewart  v.  Bedditt,  3  Md.  67;  Re  Pinney,  27  Minn.  280; 
Hyer  v.  Little,  20  N.  J.  Eq.  443;  Rambler  v.  Try  on,  7  Serg.  &  R.  90,  10 
Am.  Dec.  444;  Puryear  v.  Reese,  6  Coldw.  21;  Gibson  v.  Gibson,  9  Yerg. 
329;  McCurry  v.  Hooper,  12  Ala.  823;  Bowling  v.  Bowling,  8  Ala.  538; 
Dicken  v.  Joknson,  7  Ga.  484. 

2  State  v.  Klinger,  46  Mo.  224;  Morse  v.  Crawford,  17  Vt.  502,  44  Am. 
Dec.  349. 

3  Dunkam's  Appeal,  27  Conn.  192;  Pittard  v.  Foster,  12  HI.  App.  132; 
Rice  v.  Rice,  50  Mick.  448,  53  Mick.  432;  State  v.  Klinger,  46  Mo.  224;  St. 
Louis  Mut.  L.  Ins.  Co.  v.  Graves,  6  Busk,  268. 

4  Dunkam's  Appeal,  27  Conn.  192;  Pittard  v.  Foster,  12  HI.  App.  132. 

5  Florey  v.  Florey,  24  Ala.  241;  People  v.  Sanford,  43  Cal.  29;  Grant  v. 
Tkompson,  4  Conn.  203,  10  Am.  Dec.  119;  Armstrong  v.  State,  30  Fla.  170, 
17  L.  R.  A.  484;  Fielder  v.  Collier,  13  Ga.  496;  Dicken  v.  Joknson,  7  Ga. 
484;  Foster  v.  Brooks,  6  Ga.  290;  Hamrick  v.  State,  134  Ind.  324;  State, 
Nave,  v.  Newlin,  69  Ind.  108;  Butler  v.  St.  Louis  L.  Ins.  Co.  45  Iowa,  93; 
Smitk  v.  Hickenbottom,  57  Iowa,  733;  Pelamourges  v.  Clark,  9  Iowa,  1; 
Baugkman  v.  Baugkman,  32  Kan.  538;  Pkelps  v.  Com.  17  Ky.  L.  Rep.  706; 
Godden  v.  Burke,  35  La.  Ann.  160;  Fayette  v.  Ckesterville,  77  Me.  28,  52 
Am.  Rep.  741;  Stewart  v.  Redditt,  3  Md.  67;  Ckase  v.  Winans,  59  Md.  475; 
Waters  v.  Waters,  35  Md.  531;  Sharp  v.  Kansas  City  Cable  R.  Co.  114  Mo. 
94;  Farrell  v.  Brennau,  32  Mo.  328,  82  Am.  Dec.  137;  Crowe  v.  Peters,  63 
Mo.  429;  Reed  v.  State,  62  Miss.  405;  Hay  v.  Miller,  48  Neb.  156;  Genz  v. 
State,  58  N.  J.  L.  482;  Carpenter  v.  Hatck,  64  N.  H.  573;  McRae  v.  Mal- 
loy,  93  N.  C.  154;  McLeary  v.  Norment,  84  N.  C.  235;  Price  v.  Rickmond 
&  D.  R.  Co.  38  S.  C.  199;  Haney  v.  Clark,  65  Tex.  93;  Garrison  v.  Blanton, 


558 


MEDICAL    JURISPRUDENCE    OE    INSANITY. 


for  the  commission  of  crime  in  which  insanity  is  alleged  as  a  de- 
fense.1 And  nonexperts,  as  well  as  experts,  may  give  their  opin- 
ion as  to  whether  a  person  accused  of  theft  is  afflicted  with  klep- 
tomania, where  most  of  the  symptoms  of  the  disease  are  testified 
to  by  them,  and  most  of  his  thefts,  and  his  propensity  to  steal, 
were  noticed  among  those  who  knew  him.2  And  the  absence  of 
witnesses  who  would  give  opinions  as  to  the  sanity  of  the  accused 
based  upon  their  association  with  him  and  their  observation  of 
his  conduct,  language,  and  appearance,  is  a  sufficient  ground  for 
a  continuance,3  though  there  were  other  witnesses  who  gave  simi- 
lar opinions,  where  the  witnesses  in  question  had  better  means  of 
knowing  the  condition  of  the  accused.4 

So,  the  same  rule  is  applied  in  contract  actions  in  which  the 
insanity  of  a  party  is  alleged.5     And  to  actions  upon  deeds  claimed 

48  Tex.  299;  Hathaway  v.  National  L.  Ins.  Co.  48  Yt.  336;  Cram  v.  Cram, 
33  Yt.  15;  Westmore  v.  Sheffield,  56  Yt.  239;  Morse  v.  Crawford,  17  Yt. 
499,  44  Am.  Dec.  349;  State  v.  Maier,  36  W.  Ya.  757;  Kilgore  v.  Cross,  1 
Fed.  Eep.  582.  And  see  State  v.  Byan,  cited  in  1  Jarnian  on  Wilis,  122, 
note;  Clary  v.  Clary,  2  Ired.  L.  78:  State  v.  Stickley,  41  Iowa,  232;  Suther- 
land v.  Hankins,  56  Ind.  343;  Rush  v.  Megee,  36  Ind.  69;  Bynian  v.  Craw- 
ford, 86  Ind.  262;  Wilkinson  v.  Pearson,  23  Pa.  117. 

1  Norris  v.  State,  16  Ala,  776;  Boiling  v.  State,  51  Ark.  588;  Smith  v. 
State,  55  Ark.  259;  People  v.  Wreden,  59  Cal.  396;  People  t.  Sanford,  43 
Cal.  29;  Choice  v.  State,  31  Ga.  424;  Berry  v.  State,  10  Ga.  512;  Jamison 
v.  People,  145  El.  357;  Upstone  v.  People,  109  HI.  169;  Goodwin  v.  State, 
96  Ind.  550;  State,  'Save,  v.  Xewlin,  69  Bad.  108;  State  v.  Winter,  72  Iowa, 
627;  Phelps  v.  Com.  17  Ey.  B.  Bep.  706;  People  v.  Finley,  38  Mich.  482; 
Beed  v.  State,  62  Miss.  405;  Wood  v.  State,  58  Miss.  741;  State  v.  Bryant, 
93  Mo.  273;  State  v.  Erb,  74  Mo.  199;  State  v.  Klinger,  46  Mo.  221;  Bald- 
win v.  State,  12  Mo.  233;  Territory  v.  Roberts,  9  Mont.  12;  Territory  v. 
Hart,  7  Mont.  489;  Polin  v.  State,  14  Neb.  540;  Schlencker  v.  State,  9  Neb. 
241;  State  v.  Potts,  100  X.  C.  457;  Clark  v.  State,  12  Ohio,  483,  40  Am. 
Dec.  481;  Com.  v.  Gerade,  145  Pa.  289;  Taylor  v.  Com.  109  Pa.  262;  Dove 
v.  State,  3  Heisk.  348;  Holcomb  v.  State,  41  Tex.  125;  Thomas  v.  State,  40 
Tex.  60;  Ellis  v.  State,  33  Tex.  Crim.  Eep.  86;  Webb  v.  State,  5  Tex.  App. 
596;  McClackey  v.  State,  5  Tex.  App.  320;  Campbell  v.  State,  10  Tex.  App. 
560;  State  v.  Hayden,  51  Yt.  296;  State  v.  Maier,  36  W.  Ya.  757;  United 
States  v.  Holmes',  1  Cliff.  98;  Reg.  v.  Oxford,  9  Car.  <fc  P.  525;  Rex  v.  Dy- 
son, 7  Car.  &  P.  305. 

:  Harris  v.  State,  18  Tex.  App.  287. 

3  Webb  v.  State,  5  Tex.  App.  596;  Harris  v.  State,  18  Tex.  App.  287. 

«  Harris  v.  State,  18  Tex.  App.  287. 

5  Beller  v.  Jones,  22  Ark.  92;  Stewart  v.  Spedden,  5  Md.  433;  Chickering 


EVIDENCE    OF    INSANITY.  559 

to  be  invalid  because  of  the  insanity  of  the  grantor.1  So,  evi. 
dence  in  a  will  contest  on  the  question  of  testamentary  capacity 
or  incapacity  is  governed  by  the  same  rule.2  And  a  witness  in  a 
will  contest  who  had  a  business  transaction  with  the  testator 
which  he  gave  in  detail  may  testify  whether  anything  occurred 
at  the  time  which  indicated  a  want  of  understanding  on  the  part 
of  the  testator  as  to  the  business  in  which  he  was  engaged, 
and  whether  he  saw  anything  that  indicated  mental  derangement,. 
and  as  to  his  opinion  as  to  his  mental  condition.3  Such  opin 
ions  as  to  mental  capacity  are  admissible  if  the  witnesses 
knew  and  had  an  opportunity  to  observe  the  testator.4  And' 
where  the  witnesses  were  with  the  testator  during  his  last  illness 
their  opinions,  accompanied  by  the  facts  on  which  they  were 


v.  Brooks,  61  Vt.  554;  Cram  v.  Cram,  33  Vt.  15;  Burnham  v.  Mitchell,  34 
Wis.  117;  Kilgore  v.  Cross,  1  Fed.  Kep.  578. 

1  Woodcock  v.  Johnson,  36  Minn.  217;  Frizzel  v.  Beed,  77  Ga.  724;  De- 
Witt  v.  Barly,  17  N.  Y.  340,  13  Barb.  550;  Brand  v.  Brand,  39  How.  Pr. 
193;  Culver  v.  Haslam,  7  Barb.  314;  Barker  v.  Pope,  91  N.  C.  165;  Clary 
v.  Clary,  2  Ired.  L.  78;  Elcessor  v.  Elcessor,  146  Pa.  359;  Parkhurst  v. 
Horsford,  21  Fed.  Bep.  829. 

2  Fountain  v.  Brown,  38  Ala.  72;  Abraham  v.Wilkins,  17  Ark.  292;  Kelly 
v.  McGuire,  15  Ark.  555;  Be  Carpenter,  79  Cal.  383;  Brooks's  Estate,  54 
Cal.  471;  Shanley's  Appeal,  62  Conn.  325;  Dunham's  Appeal,  27  Conn. 
192;  Ethridge  v.  Bennett,  9  Houst.  (Del.)  295;  Jamison  v.  Jamison,  & 
Houst.  (Del.)  108;  Dennis  v.Weekes,  51  Ga.  24;  Walker  v. Walker,  14  Ga. 
242;  Potts  v.  House.  6  Ga.  324,  1  Am.  Dec.  329;  Keithley  v.  Stafford,  126 
IU.  507;  American  Bible  Soc.  v.  Price,  115  HI.  623;  Boe  v.  Taylor,  45  HI. 
485;  Pittard  v.  Foster,  12  HI.  App.  132;  Leach  v.  Prebster,  39  Ind.  492; 
Be  Goldthorp,  94  Iowa,  336;  Denning  v.  Butcher,  91  Iowa,  425;  Be  Nor- 
man, 72  Iowa,  84;  Hunt  v.  Hunt,  3  B.  Mon.  577;  Williams  v.  Lee,  47  Md. 
321;  Martin  v.  Perkins,  56  Miss.  204;  Be  Pinney,  27  Minn.  280;  Hardy  v. 
Merrill,  56  N.  H.  227,  22  Am.  Bep.  441;  Bost  v.  Bost,  87  N.  C.  477;  New- 
hard  v.  Tundt,  132  Pa.  324;  Swails  v.  White,  149  Pa.  261;  Shaver  v.  Mc- 
Carthy, 110  Pa.  339;  Titlow  v.  Titlow,  54  Pa.  216;  Wogan  v.  Small,  11 
Serg.  &  B.  141;  Bambler  v.  Tryon,  7  Serg.  &  B.  90,  10  Am.  Dec.  444;  Pur- 
year  v.  Beese,  6  Coldw.  21;  Gibson  v.  Gibson,  9  Yerg.  329;  Brown  v. 
Mitchell,  87  Tex.  140,  75  Tex.  9;  Cockrill  v.  Cox,  65  Tex.  676;  Foster  v. 
Dickerson,  64  Vt.  233;  Fishburne  v.  Ferguson,  84  Va.  87;  Harrison  v. 
Bowan,  3  Wash.  C.  C.  580;  Tatham  v.  Wright,  2  Buss.  &  M.  I. 

3  Bice  v.  Bice,  53  Mich.  432. 

4  Wise  v.  Foote,  81  Ky.  10. 


•560  MEDICAL    JURISF-KUDEN'CE    OF    INSANITY. 

founded,  are  competent  on  the  question  of  his  physical  power  to 
•execute  his  will  or  to  request  another  to  sign  it  for  him.1 

So,  the  opinion  of  nonexpert  witnesses  as  to  the  mental  condi- 
tion of  an  insured  person  upon  an  issue  as  to  his  sanity  at  the 
time  of  committing  suicide  are  admissible  in  connection  with 
statements  of  the  facts  and  circumstances  within  their  personal 
knowledge  upon  which  their  opinions  are  based.2  And  evidence 
on  an  issue  as  to  the  soundness  or  unsoundness  of  the  mind  of 
-one  for  whom  a  trust  had  been  created,  and  whether  the  trust 
had  been  executed,  to  the  effect  that  the  witness  had  known  him 
from  birth  and  that  he  was  not  of  unsound  mind  and  capable  of 
managing  his  property,  is  competent  and  admissible.3  Such  opin- 
ions are  admissible  on  the  question  of  sanity  or  insanity  from 
necessity,  for  the  reason  that  the  minute  appearances  upon  which 
they  may  depend  cannot  be  so  perfectly  described  as  to  enable  a 
jury  to  draw  a  just  conclusion  therefrom  ;4  and  because  their  ob- 
servation may  have  conveyed  to  them  little  indefinable  and  almost 
imperceptible  actions  and  perceptions  which  language  cannot  ade- 
quately describe,5  and  which  from  their  nature  and  number  it 
would  be  impossible  to  bring  before  the  jury,6  upon  the  theory 
that  from  the  nature  of  the  subject  under  investigation  no  better 
evidence  could  be  obtained.7  And  opinions  of  witnesses  that  a 
person  is  sane  or  insane  or  incapable  of  doing  one  thing  or  an- 
other is  not  objectionable  as  usurping  the  province  of  the  jury.8 

But  the  general  rule,  upheld  by  the  weight  of  authority,  is  that 
a  witness  cannot  give  his  opinion  upon  the  question  of  sanity  or 
insanity  unless  he  states  the  facts  on  which  his  opinion  is  predi- 
cated,9 the  opinions  of  the  witnesses  being  merely  preliminary  to 

1  Blocher  v.  Hostetter,  2  Grant,  Cas.  288. 

2  Connecticut  Mut.  L.  Ins.  Co.  v.  Lathrop,  111  U.  S.  612,  28  L.  ed.  536; 
Charter  Oak  L.  Ins.  Co.  v.  Eodel,  95  U.  S.  235,  24  L.  ed.  433;  Hathaway 
v.  National  L.  Ins.  Co.  48  Vt.  336. 

3  Obear  v.  Gray,  73  Ga.  455. 

4  DeWitt  v.  Barly,  17  N.  Y.  340. 

5  Clifton  v.  Clifton,  47  N.  J.  Eq.  227. 

6  Pelamourges  v.  Clark,  9  Iowa,  1. 
1  Brown  v.  Com.  14  Bush,  398. 

8  Beaubien  v.  Cicotte,  12  Mich.  469. 

9  Grubb  v.  State,  117  Ind.  277;  Goodwin  v.  State,  96  Ind.  550;  Barick 
-v.  Ulmer,  144  Ind.  25;   Colee  v.  State,  75  Ind.  513;   Grant  v.  Thompson,  4 


EVIDENCE    OF    INSANITY.  5G1 

the  further  inquiry  as  to  the  facts  and  circumstances  upon  which 
it  is  based  ;'  and  that  such  opinions  are  inadmissible  unless  accom- 
panied by  statements  of  the  facts  and  circumstances  upon  which 
they  are  founded.2  And  the  court  may  permit  cross-examination 
of  the  witness  before  permitting  him  to  give  his  opinion.3 

So,  a  prosecuting  witness  in  a  prosecution  for  murder  cannot 
be  asked  on  cross-examination  whether  he  believed  the  accused 
intended  to  shoot  him,  where  it  does  not  appear  that  he  had  any 
means  of  judging  as  to  his  intention.4  Nor  is  an  affidavit  on  ap- 
plication for  a  continuance  in  a  criminal  case,  stating  that  absent 
nonexpert  witnesses  will  swear  to  unsoundness  of  mind,  but  not 
giving  the  specific  facts  indicating  insanity  upon  which  their 
opinions  are  based,  sufficient.5 

Conn.  203,  10  Am.  Dec.  119;  State  v.  Pennyman,  68  Iowa,  216;  Hunt  v. 
Hunt,  3  B.  Mon.  575;  Eloi  v.  Eloi,  36  La.  Ann.  563;  State  v.  Coleman,  27 
La.  Ann.  691;  Bice  v.  Bice,  50  Mich.  448,  53  Mich.  432;  Lynch  v.  Doran, 
95  Mich.  395;  Sheehan  v.  Kearney  (Miss.)  35  L.  B.  A.  102;  State  v. 
Klinger,  46  Mo.  224;  Shaver  v.  McCarthy,  110  Pa.  339;  First  Nat.  Bank  v. 
Wirebach,  12  W.  N.  C.  150;  Wilcox  v.  State,  94  Tenn.  106;  Ellis  v.  State, 
33  Tex.  Crim.  Bep.  86;  Foster  v.  Dickerson,  64  Vt.  233;  Be  Blood,  62  Vt. 
359;   State  v.  Brooks,  4  Wash.  328;  Armstrong  v.  State,  30  Fla.  170,  17  L. 

B.  A.  484;  Be  Pinney,  27  Minn.  280;  Murphree  v.  Senn,  107  Ala.  424; 
Hoover  v.  State,  48  Neb.  184;  Sagar  v.  Hogmire  (Mich.)  2  Det.  L.  N.  894. 

1  Garrison  v.  Garrison,  15  N.  J.  Eq.  266. 

2  Boberts  v.  Trawick,  13  Ala.  68;  Bowling  v.  Bowling,  8  Ala.  538;  Jami- 
son v.  Jamison,  3  Houst.  (Del.)  108;  Bowden  v.  Achor,  95  Ga.  243;  Dicken 
v.  Johnson,  7  Ga.  492;  Potts  v.  House,  6  Ga.  324,  1  Am.  Dec.  329;  Jami- 
son v.  People,  145  111.  357;  Burkhart  v.  Gladish,  123  Ind.  338;  Doe,  Sut- 
ton, v.  Beagan,  5  Blackf.  217,  33  Am.  Dec.  466;  Pelamourges  v.  Clark,  9 
Iowa,  1;  Shirleys  v.  Taylor,  5  B.  Mon.  99;  Godden  v.  Burke,  35  La.  Ann. 
160;  Waters  v.  Waters,  35  Md.  531;  Dorsey  v.  Warfleld,  7  Md.  65;  Town- 
shend  v.  Townshend,  7  Gill,  10;  Needham  v.  Ide,  5  Pick.  510;  White  v. 
Bailey,  10  Mich.  165;  Prentis  v.  Bates,  93  Mich.  234,  17  L.  B.  A.  494; 
State  v.  Crisp.  126  Mo.  605;  Culver  v.  Haslam,  7  Barb.  314;  Brand  v. 
Brand,  39  How.  Pr.  193;  State  v.  Murray,  11  Or.  413;  State  v.  Abrams,  11 
Or.  169;  Doran  v.  McConlogue,  150  Pa.  98;  First  Nat.  Bank  v.  Wirebach, 
106  Pa.  37;  Dickinson  v.  Dickinson,  61  Pa.  401;  Stokes  v.  Miller,  10  W.  N. 

C.  241;  Anderson  v.  Cranmer,  11  W.  Va.  562;  Yanke  v.  State,  51  Wis.  464. 
But  see  Williams  v.  Lee,  47  Md.  321;  Van  Huss  v.  Bainbolt,  2  Coldw.  139. 

3  O'Connor  v.  Madison,  98  Mich.  183. 

4  State  v.  Garvey,  11  Minn.  154. 

6  Warner  v.  State,  114  Ind.  137;  Mendiola  v.  State,  18  Tex.  App.  462. 
36 


562  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

A  number  of  the  cases,  however,  have  seemed  to  treat  the  fail- 
ure to  state  the  facts  and  circumstances  upon  which  the  opinion 
is  based  as  going  to  the  weight  rather  than  to  the  admissibility  of 
the  evidence,  stating  the  rule  to  be  that  such  opinions  as  to  sanity 
or  insanity  are  entitled  to  little  or  no  weight  unless  facts  and  cir- 
cumstances clearly  warranting  them  are  given,1  such  evidence, 
except  so  far  as  it  is  based  on  facts  and  occurrences  detailed  by 
the  witnesses,  being  regarded  as  the  poorest  kind  of  evidence.* 
And  that  the  fact  that  a  witness  having  an  opportunity  to  form 
a  correct  judgment  is  unable  to  state  the  circumstances  upon 
which  his  opinion  is  based,  or  that  the  circumstances  stated  did 
not  justify  the  opinion,  does  not  warrant  the  court  in  excluding 
it  as  evidence  or  instructing  the  jury  to  disregard  it.2 

Where  a  witness  has  stated  circumstances  upon  which  an  opin- 
ion as  to  the  sanity  of  another  might  be  predicated,  however,  he 
may  afterwards  give  his  opinion  without  repeating  such  circum- 
stances in  connection  with  it.4  K"or  is  it  necessary  that  a  nonex- 
pert witness  should  accompany  his  opinion  with  the  facts  upon 
which  it  is  based  where  he  testifies  to  the  sanity  of  the  party,  a& 
in  such  case  there  may  be  no  abnormal  acts  to  be  stated.5  And 
one  who  has  been  extremely  intimate  with  the  person  whose  san- 
ity is  in  question  all  his  life,  having  many  opportunities  for  judg- 
ing as  to  his  mind,  may  give  his  opinion  as  to  mental  capacity, 
though  he  has  not  stated  facts  in  his  testimony  upon  which  he 
bases  it."  Kor  will  the  failure  to  show  that  nonexpert  witnesses- 
had  any  correct  understanding  of  the  true  criterion  of  testamentary 
capacity  furnish  any  objection  to  a  finding  and  judgment  in  a 
will  contest  based  upon  their  testimony,  where  they  gave  their 
opinions  without  objection  and  without  being  required  to  state 

1  Kinne  v.  Kinne,  9  Conn.  102,  21  Am.  Dec.  732;  Chase  v.  Winans,  59 
Md.  475;  Beaubien  v.  Cicotte,  12  Mich.  459;  Clifton  v.  Clifton,  47  K  J. 
Eq.  227;  Sloan  v.  Maxwell,  3  N.  J.  Eq.  563;  Lowe  v.  "Williamson,  2  N.  J. 
Eq.  82. 

2  Whitenack  v.  Stryker,  2  K  J.  Eq.  8. 

3  Stubbs  v.  Houston,  33  Ala.  555. 

4  People  v.  Borgetto,  99  Mich.  336. 
6  Ford  v.  State,  71  Ala.  385. 

6  "Weems  v.  Weems,  19  Md.  334;  Newcomb  v.  Newcomb,  16  Ky.  L.  Bep. 
376. 


EVIDENCE    OF    INSANITY, 


563 


the  grounds  therefor.1     And  the  objection  that  facts  were  not 
stated  cannot  be  first  taken  on  appeal.2 

The  opinion  of  a  witness  as  to  the  mental  capacity  of  the  per- 
son accused  of  crime  is  not  admissible,  however,  when  offered, 
not  for  the  purpose  of  proving  him  compos  mentis,  but  as  a 
measure  of  his  intellectual  capacity.3  And  the  previously  ex- 
pressed opinion  of  the  person  killed  is  not  admissible  on  the 
question  of  the  sanity  of  the  accused  upon  a  prosecution  for  such 
killing.4  Nor  can  a  nonexpert  witness  who  had  testified  to  facts 
tending  to  show  that  a  party  to  a  contract  was  incompetent,  be 
contradicted  by  showing  that  he  had  done  acts  indicating  that  he 
considered  such  party  to  be  of  sound  mind,6  though  a  witness 
who  has  given  his  opinion  that  a  testator  was  of  sound  mind  may 
be  asked  upon  cross-examination  by  way  of  impeachment  if  he 
had  stated  out  of  court  that  the  testator  was  childish  and  going 
crazy.6  And  where  such  witness  testifies  to  facts  showing  the 
insanity  of  the  testator,  and  proof  is  made  of  declarations  at  other 
times  that  in  the  opinion  of  the  witnesses  the  testator  was  sane, 
such  opinions  may  be  considered  by  the  jury  with  the  other  evi- 
dence in  chief  on  the  question  of  the  testator's  sanity.7 

§  9.  Exceptions  to  the  general  rule. 

Some  of  the  cases  have  refused  to  regard  the  question  of  insanity 
as  an  exception  to  the  rule,  excluding  the  opinions  of  nonexpert 
witnesses ;  and  the  rule  has  been  laid  down  by  the  courts  of  Maine, 
Massachusetts,  New  Hampshire,  and  New  York  that  the  opinions 
of  witnesses  who  are  not  experts  are  not  admissible  in  evidence 
upon  the  question  of  the  mental  capacity  of  a  person,  though 
given  in  connection  with  the  facts  and  circumstances  relied  on 
to  prove  incapacity,  and  though  the  witnesses  were  personally 
acquainted  with  him  and  had  had  opportunity  to  learn  the  quality 

1  Appleby  v.  Brock,  76  Mo.  314. 
*  State  v.  Murray,  11  Or.  413. 

3  Patterson  v.  People,  46  Barb.  625. 

4  Lake  v.  People,  1  Park.  Crim.  Bep.  495. 

5  Hubbell  v.  BisseU,  2  Allen,  196. 

6  Staser  v.  Hogan,  120  Ind.  227. 
1  Ware  v.  Ware,  8  Me.  42. 


564  MEDICAL   JUKISPEUDENCE   OF   INSANITY. 

of  his  mind.1  Their  evidence  must  consist  of  the  acts  and  decla- 
rations of  a  person  evincing  a  want  of  capacity,  leaving  it  to  the 
jury  to  say  what  inference  shall  be  drawn  from  the  testimony 
given.2  In  IS^ew  Hampshire,  however,  this  doctrine  has  been 
repudiated,  and  the  general  rule  with  reference  to  insanity  has 
been  adopted.3  Under  the  rule  as  applied  in  Massachusetts  a  non- 
expert witness  who  has  testified  that  a  testator  has  failed  men- 
tally and  physically,  and  that  he  has  noticed  a  decided  change 
in  his  intelligence,  cannot  be  asked  whether  from  his  general 
appearance  he  considered  him  capable  of  making  a  contract  or 
transacting  important  business.4  And  a  witness  who  had  seen  a 
testator  shortly  before  and  shortly  after  a  shock  of  paralysis  which 
is  alleged  to  have  caused  his  incompetency  cannot  be  asked  what 
were  his  condition  and  appearance  with  regard  to  conduct  and 
conversations  at  the  last  interview  as  compared  with  those  at  a 
former  one,  as  it  might  be  understood  by  the  witness  as  calling 
for  his  opinion  as  to  his  mental  condition.5  ]STor  can  the  opinion 
of  an  attesting  witness  who  is  not  an  expert  be  given  as  to  the 
strength  of  mind  required  to  comprehend  a  clause  in  the  will 
creating  charitable  trusts,  and  as  to  whether  the  testator  had  suffi- 
cient strength  of  mind  to  comprehend  it.6 

But  evidence  by  a  nonexpert  that  he  observed  no  incoherence 
of  thought  in  the  testator,  or  anything  unusual  or  singular  with 
respect  to  his  mental  condition,  is  admissible,  as  it  is  not  the  giv- 

1  Wyman  v.  Gould,  47  Me.  159;  Cowles  v.  Merchant,  140  Mass.  377;  Has- 
tings v.  Eider,  99  Mass.  622;  Com.  v.  Fairbanks,  2  Allen,  511;  Com.  v.  Wil- 
son, 1  Gray,  339;  State  v.  Archer,  54  N.  H.  465;  State  v.  Pike,  49  N.  H. 
399,  6  Am.  Eep.  536;  Boardman  v.  Woodman,  47  N.  H.  120;  Hamblett  v. 
Hamblett,  6  N:  H.  333;  People  v.  Pish,  125  N.  T.  136;  Holcomb  v.  Hol- 
conib,  95  N.  T.  316;  Ee  Eoss,  87  N.  T.  514;  Hewlett  v.  Wood,  55  N.  Y.  634; 
Eeal  v.  People,  42  N.  T.  270;  O'Brien  v.  People,  36  N.  Y.  276,  48  Barb. 
278;  Clapp  v.  Fullerton,  34  N.  Y.  190,  90  Am.  Dec.  681;  Dewitt  v.  Barley, 
9  N.  Y.  371;  Ee  Klock,  49  Hun,  450;  Ee  Arnold,  14  Hun,  525;  Howell  v. 
Taylor,  11  Hun,  214;  Eollwagen  v.  Eollwagen,  3  Hun,  121;  Sears  v.  Shafer, 
1  Barb.  408;  Ee  Eapplee,  66  Hun,  558. 

a  State  v.  Pike,  49  N.  H.  399,  6  Am.  Eep.  533;  Sears  v.  Shafer,  1  Barb. 
408;  Ee  Eapplee,  66  Hun,  558. 

3  Hardy  v.  Merrill,  56  N.  H.  227,  22  Am.  Eep.  441. 

4  Smith  v.  Smith,  157  Mass.  389. 
6  Ellis  v.  Ellis,  133  Mass.  469. 

6  Melanefy  v.  Morrison,  152  Mass.  473. 


EVIDENCE   OF   INSANITY.  565 

ing  of  an  opinion  as  to  the  condition  of  his  mind  but  only  a  state- 
ment of  its  manifestation  as  observed  by  him.1  And  nonexperts 
may  testify  to  the  appearance  of  the  testator,  and  to  any  particu- 
lar thing  from  which  the  state  of  his  mind  might  be  inferred 
aside  from  their  opinion  and  judgment  upon  the  question.2  Any 
witness  of  ordinary  intelligence,  who  is  familiarly  acquainted  with 
another,  may  testify  whether  within  a  given  time  he  has  failed 
mentally  or  physically,  and  whether  he  noticed  any  difference  in 
his  mode  of  doing  business.3  And  such  a  witness  may  be  asked 
whether  he  had  observed  any  facts  which  led  him  to  infer  that 
there  was  any  derangement  of  intellect.4  And  permitting  a  wit- 
ness to  add  to  his  negative  answers  to  questions  as  to  whether  he 
had  heard  certain  statements  about  the  mental  condition  of  another, 
to  the  effect  that  he  had  never  thought  of  such  a  thing  as  the 
person  being  insane  because  it  was  not  true,  furnishes  no  ground 
for  exception.5  So,  in  Maine  the  opinion  of  witnesses  testifying 
to  facts  showing  incapacity,  who  had  been  impeached  by  proof  of 
declarations  made  at  other  times,  that  in  their  opinion  the  testator 
was  sane,  may  be  considered  with  the  other  evidence  in  chief  as 
tending  to  prove  capacity,6  though  they  can  only  state  how  the 
party  appeared  with  reference  to  soundness  or  unsoundness  of 
mind.7 

Under  the  New  York  rule  a  nonexpert  cannot  testify  in  a  will 
contest  as  to  the  impressions  made  upon  him  by  the  acts  and  say- 
ings of  the  testator  as  to  whether  his  mind  or  memory  was  failing,8 
though  he  may  testify  generally  as  to  impressions  produced  upon 
him  by  what  he  has  witnessed.9  And  the  opinions  of  witnesses 
cannot  be  given  as  to  what  construction  they  placed  upon  certain 
motions  and  the  meaning  of  certain  sounds  uttered  by  him.10  Nor 
can  an  expert  witness  be  permitted  to  testify  that  the  maker  of 

1  Nash  v.  Hunt,  116  Mass.  237. 

a  Poole  v.  Richardson,  3  Mass.  330. 

3  Com.  v.  Brayman,  136  Mass.  438. 

4  McConnell  v.  Wildes,  153  Mass.  487;  May  v.  Bradlee,  127  Mass.  414. 
6  Nash  v.  Hunt,  116  Mass.  238. 

6  Ware  v.  Ware,  8  Me.  42. 

1  Wyman  v.  Gould,  47  Me.  159. 

8  Lawrence  v.  Lawrence,  4  N.  Y.  Week.  Dig.  299. 

9  Clapp  v.  Fullerton,  34  N.  Y.  190. 
Rollwagen  v.  Rollwagen,  5  Thomp.  &  C.  402. 


566  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

an  assignment  was  imbecile  or  that  his  mind  was  gone ; '  or  as  to 
whether  a  grantor  was  rational  or  irrational, — though  such  opinion 
is  based  upon  specific  acts,  conversation,  and  personal  observation.' 
Nor  are  opinions  as  to  the  mental  capacity  of  a  testator  rendered 
competent  by  the  fact  that  the  witness  was  a  subscribing  witness 
to  the  will,  where  the  inquiry  is  not  limited  to  the  time  of  its 
execution.3  And  refusal  to  permit  a  witness  to  a  will  to  state 
whether  there  was  anything  in  the  testator's  manners  or  appear- 
ance different  from  what  he  had  seen  for  the  past  year  is  not  a 
violation  of  the  rule  that  a  subscribing  witness  can  give  his  opin- 
ion generally  as  to  soundness  of  mind  where  the  witnesses  had 
not  described  the  manner  and  appearance  of  the  testator,  but  had 
merely  stated  the  conversations  had  with  him  and  what  was  done.4 
Nonexpert  witnesses  who  are  examined  as  to  facts  within  their 
own  knowledge  and  observation  tending  to  show  the  soundness 
or  unsoundness  of  a  person's  mind,  however,  may  characterize  as 
rational  or  irrational  the  acts,  conduct,  and  declarations  to  which 
they  testify,  limiting  their  testimony  to  conclusions  from  the  facts 
disclosed ; 5  though  such  inquiries  do  not  fall  within  the  province 
of  mere  cross-examination.6  And  the  admission  in  evidence  in  a 
will  contest  of  the  opinions  of  nonexpert  witnesses  on  the  general 
question  of  testamentary  capacity,  though  erroneous,  does  not 
require  a  reversal  where  the  facts  given  in  evidence  were  compe- 
tent and  plainly  sufficient  to  uphold  the  determination.7  So, 
evidence  in  a  prosecution  for  homicide  as  to  whether  the  wit- 
nesses would  regard  the  actions  of  the  accused  as  irrational,  if  he 
were  nervous  and  irritable  after  divorce  papers  had  been  served 
upon  him,  is  admissible  as  tending  to  characterize  and  develop 

1  Holcomb  v.  Holcomb,  95  N.  Y.  316. 

2  Paine  v.  Aldrich,  133  N.  Y.  544. 

3  Re  McCarthy,  55  Hun,  7. 

4  Petrie  v.  Petrie,  25  N.  Y.  S.  E.  309. 

6  Paine  v.  Aldrich,  133  N.  Y.  544;  People  v.  Packenham,  113  N.  Y.  200; 
People  v.  Conroy,  97  N.  Y.  67;  Holcomb  v.  Holcomb,  95  N.  Y.  316;  Re 
Ross,  87  N.  Y  514;  Rider  v.  Miller,  86  N.  Y.  507;  Hewlett  v.  Wood,  55 
N.  Y.  634;  Clapp  v.  Fullerton,  34  N.  Y.  190;  Howell  v.  Taylor,  11  Hun, 
214;  Re  Klock,  49  Hun,  450. 

6  Rollwagen  v.  Rollwagen,  5  Thomp.  &  C.  402. 

1  Clapp  v.  PuUerton,  34  N.  Y.  190. 


EVIDENCE    OF    INSANITY.  567 

the  weight  to  be  given  his  evidence  on  his  direct  examination.1 
And  the  admission  in  evidence  in  a  will  contest  of  a  deposition 
taken  in  another  state  containing  the  opinions  of  nonexpert  wit- 
nesses is  not  error  where  the  parties  had  agreed  that  they  would 
not  object  to  evidence  taken  under  the  commission  except  as 
noted  on  the  return,  and  no  objections  were  noted  to  such 
evidence.2 

So,  the  opinion  was  expressed  in  a  Texas  case  that  it  would  be 
better  practice,  as  a  general  rule,  to  confine  nonexpert  witnesses 
to  the  statement  of  demonstrations  which  indicate  insanity,  and 
leave  the  jury  to  form  their  own  opinion.3  But  this  statement 
was  obiter  and  the  general  rule  stated  in  a  preceding  section  has 
been  adopted  in  that  state.4 

§  10.  Who  may  give. 
The  rule  is  laid  down  generally  that  anyone  who  had  an  oppor- 
tunity of  knowing  and  observing  a  person  whose  sanity  is 
impeached  may  give  his  opinion  as  to  his  mental  capacity, 
whether  he  was  an  attesting  witness  or  not.5  And  this  rule  has 
been  applied  to  persons  who  were  parties  to  the  suit,6  to  legatees,7 
and  to  contestants  of  a  will,8  and  to  a  guardian  of  a  testatrix,9  to 
brothers,10  to  daughters,11  and  to  a  wife,  with  relation  to  'the 
mental  condition  of  her  husband.12  And  the  divorced  wife  of  a 
person  accused  of  crime  may  testify  as  to  whether  from  her 
association  with  him  she  ever  saw  anything  that  would  indicate 
that  he  was  a  man  of  unsound  mind,  without  violating  the  rule 
which  protects  the  privacy  and  confidence  of  the  marriage  rela- 
tion.13    So,  an  administrator  who  had  been  the  family  physician 

1  People  v.  Osmond,  138  N.  Y.  80. 

2  He  Bull,  14  Daly,  510. 

3  Hickman  v.  State,  38  Tex.  190. 

4  See  supra,  §  8. 

6  Doe,  McDougald,  v.  McLean,  Winst.  L.  pt.  1,  p.  120. 

6  Severin  v.  Zack,  55  Iowa,  28. 

7  Burkhart  v.  Gladish,  123  Ind.  338;  Staser  v.  Hogan,  120  Ind.  227. 

8  Williams  v.  Williams,  90  Ky.  28. 

9  Howard  v.  Coke,  7  B.  Mon.  655. 
10  Weems  v.  Weems,  19  Md.  334. 

J1  Moore  v.  Moore,  67  Mo.  192. 

18  Haney  v.  Clark,  65  Tex.  93;  Burnham  v.  Mitchell,  34  Wis.  117. 

13  United  States  v.  Guiteau,  1  Mackey,  498. 


563 


MEDICAL    JURISPRUDENCE    OF    INSANITY. 


of  a  testator  for  years  may  testify  as  a  witness  for  himself  on  the 
trial  of  an  application  to  sell  lands  for  the  payment  of  debts  in 
which  the  issue  was  as  to  the  validity  of  a  promissory  note  signed 
by  the  intestate,  as  to  his  general  insanity,  and  state  the  facts 
upon  which  his  opinion  was  founded.1  Testimony  of  a  daughter 
of  a  person  who  had  made  a  promissory  note  to  take  effect  after 
death,  in  an  action  upon  the  note,  as  to  her  opinion  as  to  his 
capacity  to  make  a  contract,  however,  is  not  admissible  under 
statutory  prohibitions  as  to  testimony  in  relation  to  a  personal 
transaction  or  communication  with  a  deceased  person.1  And  an 
administrator  cannot  testify  in  an  action  upon  a  note  made  by  the 
intestate  as  to  the  condition  of  his  mind  at  the  time  it  was  given 
under  a  statutory  provision  prohibiting  testimony  as  to  any  trans- 
action with  or  statement  by  the  deceased.3  And  it  has  been  held 
that  one  who  would  inherit  a  part  of  a  testator's  property  but  for 
his  will  is  incompetent  to  give  his  opinion  as  to  his  capacity  to 
make  it.4  And  that  daughters  of  a  testator  are  not  competent 
witnesses  on  their  own  behalf  to  prove  the  insanity  of  their 
father  at  and  prior  to  the  time  he  executed  his  last  will,  upon  a 
bill  in  equity  to  contest  its  validity.5 

§  11.   The  acquaintance  necessary. 

The  rule  is  generally  stated  that  a  nonexpert  witness  may  give 
his  opinion  as  to  the  sanity  or  insanity  of  another  where  he  is 
well  acquainted  with  him.'3  or  where  he  had  been  long  and  inti- 
mately acquainted  with  him/  or  where  he  had  frequent  or 
adequate  opportunities  for  observing  him  and  judging  as  to  his 
mental  capacity ; !  but  that  such  evidence  could  not  be  given  by 

1  Davis  v.  Tarver,  65  Ala.  98. 

-  Ducker  v.  Whitson,  112  X.  C.  44.  And  see  Be  Eysaman,  113  X.  T.  62, 
3  L.  B  A  599. 

s  Davis  v.  Tarver,  65  Ala.  98. 

i  Kerr  v.  Lunsford,  31  W.  Ya.  680,  2  L.  B.  A.  668. 

5  Brace  v.  Black,  125  111.  33. 

6  Territory  v,  Roberts,  9  Mont.  12;  Price  v.  Bichrnond  &  D.  B.  Co.  38 
S.  C.  199;  State  v.  Maier,  36  W.  Ya.  757. 

"  Fountain  v.  Brown,  38  Ala.  72 ;  Williams  v.  Lee,  47  Md.  321;  Polin  v. 
State,  14  Neb.  540. 

8  Skanlev's  Appeal,  62  Conn.  325;  Brooks's  Estate,  54  Cal.  471;  People 
v.  Saiiford,  43  Cal.  29;  Keitliley  v.  Stafford.  126  111.  527;  Jamison  v.  People, 


EVIDENCE    OF    INSANITY.  569 

one  who  had  no  opportunities  for  forming  an  opinion.1  And 
that  it  is  admissible  only  where  he  has  an  adequate  opportunity 
to  observe  the  conduct  and  appearance  of  the  person  to  whom 
insanity  is  imputed,  and  when  his  judgment  is  based  upon  per- 
sonal observation  of  his  appearance,  habits,  manner,  and  conduct.' 
The  rule  definitely  stated  would  seem  to  be  that  the  acquaintance 
and  intimacy  must  have  been  such  as  to  justify  the  conclusion 
that  the  witness  had  formed  a  correct  judgment  as  to  the  mental 
status  and  habits  of  the  person  whose  sanity  is  questioned.* 
There  must  be  something  more  than  mere  occasional  brief  inter- 
views on  general  or  indefinite  subjects.4  The  evidence  should  be 
such  as  to  apprise  the  court  that  the  witness  may  himself  believe 
in  the  competency  or  incompetency  of  the  person  upon  reasonable 
grounds/  And  the  court  may  properly  require  the  witness  to 
state  all  the  circumstances  upon  which  his  opinion  is  based  before 
permitting  him  to  state  it.6  Thus,  a  witness  may  be  permitted 
to  give  his  opinion  as  to  the  mental  capacity  of  another  where 
he  has  been  in  the  habit  of  visiting  him  and  was  acquainted  with 
his  former  condition,  and  could  mark  any  change  at  the  time  of 
the  interview,7  and  could  make  an  intelligent  comparison  between 
his  conduct  at  that  time  and  when  he  enjoyed  the  full  use  of  his 
mental  faculties.8  And  a  witness  is  competent  where  he  grew 
up  with  the  testator  and  marked  his  conduct  in  infancy,  in  the 

145  HI.  357;  Brown  v.  Com.  14  Bush,  398;  Weems  v.  Weenis,  19  Md.  334; 
Beed  v.  State,  62  Miss.  405;  State  v.  Bryant,  93  Mo.  273;  Turner  v.  Kansas 
City,  St.  J.  &  C.  B.  B.  Co.  23  Mo.  App.  12;  State  v.  Potts,  100  N.  C.  457; 
Clary  v.  Clary,  2  Ired.  L.  78;  Com.  v.  Gerade,  145  Pa.  289;  Bricker  v. 
Lightner,  40  Pa.  199. 

1  State  v.  Crisp,  126  Mo.  605. 

8  Taylor  v.  United  States,  7  App.  D.  C.  27. 

3  Moore  v.  Speir,  80  Ala.  129;  Florey  v.  Florey,  24  Ala.  241;  Norris  v. 
State,  16  Ala.  776;  Boberts  v.  Trawick,  13  Ala.  68;  Ford  v.  State,  71  Ala. 
385;  Be  Carmickael,  36  Ala.  514;  O'Connor  v.  Madison,  98  Mich.  183; 
Wood  v.  State,  58  Miss.  741;  Thomas  v.  State,  40  Tex.  60.  And  see  John- 
son v.  Culver,  116  Ind.  278. 

4  Be  Carmichael,  36  Ala.  514.     And  see  Eckert  v.  Flowry,  43  Pa.  46. 

5  People  v.  Borgetto,  99  Mich.  336. 

6  O'Connor  v.  Madison,  98  Mich.  183. 
'  Swails  v.  White,  149  Pa.  261. 

8  Beller  v.  Jones,  22  Ark.  92. 


570  MEDICAL    JURISPKUDEXCE    OF    INSANITY. 

prime  of  life,  and  in  his  decline  ;  *  or  where  he  was  acquainted  with 
him  and  had  seen  him  frequently  under  different  circumstances;' 
or  where  he  is  shown  to  have  had  an  intimate  acquaintance  with 
him  for  years  and  up  to  the  time  of  the  act  in  question  ; 3  or  where 
he  had  known  him  from  childhood  and  had  been  intimate  with 
him ; 4  or  where  he  had  seen  and  known  him  for  thirty-five  years ;  * 
or  where  he  had  known  him  well  for  twenty-five  years,  and  had 
often  had  dealings  with  him ; 6  or  where  he  had  known  him  for 
fifteen  years,  and  met  and  observed  him  almost  daily  for  six 
weeks  immediately  preceding  the  act  in  question  ; 7  or  where  he 
had  known  him  intimately  for  two  years,  and  was  with  him  every 
day  or  two ; 8  or  where  he  had  known  him  two  years,  and  lived 
near  by  and  frequently  saw  him  at  work  when  passing  his  house  ;9 
or  where  he  had  frequent  and  friendly  intercourse  with  him,  and 
abundant  opportunity  to  observe  his  condition  and  note  the  changes 
in  it  during  the  last  year.10  And  it  has  been  held  that  one  who 
was  with  a  testator  and  assisted  in  caring  for  him  during  the  last 
three  days  of  his  life,  and  who  details  his  appearance  and  condi- 
tion at  the  time,  is  sufficiently  qualified  to  express  an  opinion  as 
to  his  soundness  of  mind.11 

So,  a  witness  is  competent  to  give  an  opinion  as  to  sanity  or 
insanity  where  he  is  a  relative  of  and  intimate  with  the  party 
whose  sanity  is  in  question,  and  had  stayed  at  his  house  for  some 
time ; 12  and  so  is  the  daughter  of  a  person  who  had  known  him 
and  lived  with  him  all  her  life  and  had  seen  him  make  contracts, 
and  who  saw  him  immediately  after  the  act  in  question  ; 13  or  who 
knew  his  habits  and  state  of  mind  and  had  heard  him  speak  of 

1  Rambler  v.  Tryon,  7  Serg.  &  E.  90,  10  Am.  Dec.  444. 

2  State  v.  Hayden,  51  Yt.  296. 

3  State  v.  Hurst  (Idaho)  39  Pac.  554 

4  Stubbs  v.  Houston,  33  Ala.  555. 

5  Denning  v.  Butcher,  91  Iowa,  425. 

6  Townshend  v.  Townshend,  7  Gill,  10. 
■  Pflueger  v.  State,  46  Neb.  493. 

*  Stuckey  v.  Bellah,  41  Ala.  700. 

9  Sage  v.  State,  91  Ind.  141.     And  see  State  v.  Geddis,  42  Iowa,  268. 

10  Commonwealth  Title  Ins.  &  T.  Co.  v.  Gray,  150  Pa.  255. 

11  Mull  v.  Carr,  5  Ind.  App.  491. 

12  Stuckey  v.  Bellah,  41  Ala.  700;  Florey  v.  Plorey,  24  Ala.  241. 
«3  Young  v.  Wilmington  &  W.  K  Co.  116  N.  C.  932. 


EVIDENCE   OF   INSANITY.  571 

business  affairs.8  And  so  is  the  wife  of  such  person,  where  she 
was  constantly  with  him  and  took  care  of  him  and  dressed  him, 
and  was  the  means  of  communication  between  him  and  the  world.3 
So,  one  who  had  long  known  a  person,  and  was  a  neighbor,  and 
had  often  dealt  and  conversed  with  him,  is  competent  to  give  an 
opinion  as  to  his  soundness  of  mind.2  And  conversations,  busi- 
ness dealings,  or  social  intercourses  with  the  person  whose  sanity 
is  in  question,  are  sufficient  to  qualify  the  witnesses.4  Nonexpert 
witnesses  cannot  give  their  opinions,  however,  as  to  the  sanity  or 
insanity  of  a  person  alleged  to  have  been  afflicted  with  epileptic 
fits  where  they  have  not  seen  him  at  all  for  four  months,  and  have 
not  seen  him  thus  afflicted  for  seven  months.5  Nor  can  witnesses 
who  have  not  conversed  with  the  person  for  several  years  and  have 
only  observed  how  he  moved  about  and  looked.6  And  a  witness 
who  arrested  a  person  accused  of  crime  and  took  him  some  dis- 
tance and  turned  him  over  to  the  authorities  cannot  give  an  opin- 
ion as  to  whether  he  appreciated  the  character  of  his  act.7  Nor 
is  a  witness  sufficiently  qualified  by  testimony  that  he  presided  as 
district  judge  during  a  former  trial  of  the  offense,  and  observed 
the  accused  during  that  and  the  present  trial,  and  examined  his 
eyes,  and  was  familiar  with  the  appearance  of  insane  people ; 8  or 
by  proof  that  he  was  on  the  grand  ju^  which  visited  the  jail, 
after  the  indictment  was  found,  and  that  he  called  the  defendant 
out  of  his  cell  and  asked  him  some  questions  and  felt  of  his  head.9 
So,  one  who  had  heard  the  person  whose  sanity  is  in  question  talk, 
but  who  paid  little  attention  to  what  he  said,  and  does  not  under- 
take to  detail  it,  cannot  give  his  opinion  upon  the  question  of  his 
soundness  of  mind.10  Nor  is  a  witness  sufficiently  qualified  by 
evidence  that  he  saw  the  person  during  the  week  preceding  the 
act  in  question,  where  it  does  not  appear  how  long  he  had  known 

1  Moore  v.  Moore,  67  Mo.  192. 

2  Burnham  v.  Mitchell,  34  Wis.  117. 

3  Ryman  v.  Crawford,  86  Ind.  265. 

4  Goodwin  v.  State,  96  Ind.  550.     And  see  Re  Fenton  (Iowa)  66  N.  "W.  99. 
6  Com.  v.  Buccieri,  153  Pa.  535. 

*  Denuing  v.  Butcher,  91  Iowa,  425. 
1  BoUing  v.  State,  54  Ark.  588. 

*  McLeod  v.  State,  31  Tex.  Crim.  Bep.  331. 

9  State  v.  Klinger,  46  Mo.  224. 

10  State  v.  Stickley,  41  Iowa,  232. 


572  MEDICAL   JUBISPKUDENCE   OF   INSANITY. 

liim  or  how  frequently  he  had  seen  him,  or  whether  he  had  ever 
seen  him  before.1  And  it  has  been  held  that  only  such  intimate 
acquaintances  of  the  accused  in  a  criminal  prosecution  as  have 
seen  him  almost  daily  for  several  months  preceding  the  alleged 
crime  are  competent  as  nonexpert  witnesses  to  testify  as  to  his 
sanity  or  insanity.2 

Under  statutory  provisions  making  the  opinions  of  intimate 
acquaintances  respecting  the  mental  capacity  of  a  person  compe- 
tent, the  evidence  of  all  persons  other  than  intimate  acquaintances 
who  are  such  by  unreserved  intercourse,  and  who  are  familiar 
with  the  mode  and  temperament  of  the  person  whose  soundness  is 
questioned,  is  excluded.3  To  constitute  one  an  intimate  acquaint- 
ance, close  friendship  and  familiarity  are  required ;  there  must 
be  something  more  than  a  casual  and  ordinary  acquaintance,4 
though  where  there  is  considerable  evidence  on  the  question  of 
the  intimate  acquaintance  of  the  witness  he  may  be  permitted 
to  give  his  opinion  though  the  showing  of  intimacy  is  not  strong.5 
And  a  witness  may  testify  as  to  the  appearance  of  the  person  with 
reference  to  his  being  rational  or  irrational,  though  he  is  not  shown 
to  have  been  an  intimate  acquaintance.6 

It  does  not  require  the  same  degree  of  intimacy,  however,  to 
qualify  a  witness  to  give  his  opinion  as  to  whether  a  person  is 
generally  insane  on  all  subjects,  as  in  cases  of  monomania  or  par- 
tial derangement  where  the  particular  delusion  might  frequently 
escape  attention  ;  and  one  who  had  conversed  with  such  person 
twice  or  more  during  the  year  previous  to  the  act  in  question  is 
competent  to  give  his  opinion  as  to  whether  he  was  entirely  insane, 
though  he  would  not  be  so  to  testify  as  to  the  mere  existence  of 
the  insane  delusion.7  And  witnesses  in  a  prosecution  for  homi- 
cide who  had  not  seen  the  accused  for  months  are  not  rendered 
competent  to  give  an  opinion  as  to  his  sanity  or  insanity  by  the 
fact  that  on  some  occasions  they  had  seen  him  give  evidence  of 
mental  unsoundness  where  his  mental  aberrations  were  fitful  or 

1  Taylor  v.  United  States,  7  App.  D.  C.  27. 

5  Shults  v.  State,  37  Neb.  481. 

3  Carpenter  v.  Bailey,  94  Cal.  406;  State  v.  Murray,  11  Or.  413. 

4  State  v.  Murray,  11  Or.  413. 

6  Carpenter  v.  Bailey,  79  Cal.  382. 
6  People  v.  Lavelle,  71  Cal.  351. 

1  Powell  v.  State,  25  Ala.  21. 


EVIDENCE    OF    INSANITY. 


573 


rare  and  in  the  interval  his  mind  was  lucid.1  Whether  a  witness 
had  such  acquaintance  with  a  person  whose  sanity  is  questioned, 
and  opportunity  of  observing  him,  as  to  qualify  him  to  express  an 
opinion  as  to  his  sanity  or  insanity,  is  a  question  for  the  trial  court 
in  the  first  instance,2  resting  largely  in  its  discretion.3  And  while 
the  question  may  be  reviewed  on  appeal  the  discretion  of  the  trial 
court  in  permitting  witnesses  to  give  their  opinions  on  the  ques- 
tion of  sanity  or  insanity  will  not  be  disturbed  unless  such  discre- 
tion has  been  abused,4  where  it  appears  that  they  were  acquainted 
with  the  person  and  had  more  or  less  opportunity  for  acquiring 
knowledge  on  which  to  base  an  opinion.6  Refusal  to  allow  a  wit- 
ness in  a  will  contest  to  give  his  opinion  as  to  the  mental  capacity 
of  the  testator  where  the  showing  of  intimacy  is  sufficient,  how- 
ever, is  error  and  a  ground  for  reversal  on  appeal.6 

§  12.  Knowledge  which  will  warrant  an  opinion. 
To  warrant  an  opinion  as  to  sanity  or  insanity  by  a  nonexpert 
witness  some  knowledge  of  the  acts  and  conduct  of  the  person 
whose  sanity  is  questioned  must  appear.'  The  facts  stated  should 
furnish  a  rational  ground  for  an  opinion,8  and  show  that  the  wit- 
ness is  qualified  to  give  it.9  And  an  opinion  as  to  insanity  must 
be  supported  by  facts  fairly  indicative  of  mental  incapacity.10 

1  Com.  v.  Buccieri,  153  Pa.  535. 

2  People  v.  Schmitt,  106  Cal.  48;  People  v.  McCarthy,  115  Cal.  255. 

3  Brown  v.  Com.  14  Bush,  398;  Carpenter  v.  Bailey,  94  Cal.  406;  Hite  v. 
Com.  14  Ky.  L.  Bep.  308. 

4  People  v.  Schmitt,  106  Cal.  48;  Be  Wax,  106  Cal.  343;  People  v.  Lane, 
101  Cal.  513;  Wheelock  v.  Godfrey,  100  Cal.  578;  Carpenter  v.  Bailey,  94 
Cal.  406;  People  v.  Fine,  77  Cal.  147;  People,  Clough,  v.  Levy,  71  Cal. 
618;  People  v.  McCarthy,  115  Cal.  255;  State  v.  Hansen,  25  Or.  391. 

5  People  v.  Lane,  101  Cal.  513. 

6  Carpenter  v.  Bailey,  79  Cal.  382. 
1  Colee  v.  State,  75  Ind.  513. 

s  Jamison  v.  Jamison,  3  Houst.  (Del.)  108;  Potts  v.  House,  6  Ga.  324,  1 
Am.  Dec.  329;  Pittard  v.  Foster,  12  HI.  App.  132;  Waters  v.  Waters,  35  Md. 
531;  Elcessor  v.  Elcessor,  146  Pa.  359;  Gibson  v.  Gibson,  9  Yerg.  329;  Fos- 
ter v.  Dickerson,  64  Vt.  233. 

9  Sutherland  v.  Hankins,  56  Ind.  343;  Stewart  v.  Bedditt,  3  Md.  67; 
Woodcock  v.  Johnson,  36  Minn.  217;  Yanke  v.  State,  51  Wis.  464. 

10  O'Connor  v.  Madison,  98  Mich.  183;  Prentis  v.  Bates,  93  Mich.  234,  17 
L.  B.  A.  494;  Doran  v.  McConlogue,  150  Pa.  98;  Dickinson  v.  Dickinson, 


574  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

Taken  as  a  whole  they  should  be  such  as  would  apprise  the 
court  that  the  witnesses  may  clearly  doubt  the  competency  of  the 
person  upon  reasonable  grounds.1  And  they  must  all  have  been 
within  the  personal  knowledge  of  the  witnesses.2  And  a  motion 
for  a  continuance  in  a  criminal  prosecution  for  the  purpose  of 
obtaining  the  evidence  of  a  witness  who  was  expected  to  give  an 
opinion  as  to  the  insanity  of  the  accused  will  not  be  granted 
where  it  is  not  probable  that  the  jury  would  have  believed  Ms- 
opinion  to  have  been  correct  in  the  face  of  the  facts  upon  which 
it  was  based.3  And  a  motion  for  a  new  trial,  based  upon  the 
alleged  exclusion  of  the  opinion  of  a  witness,  must  allege  that  the 
witness  had  testified  to  facts  showing  him  qualified  to  give 
the  opinion,  a  mere  reference  to  such  evidence  as  inserted  in  a 
bill  of  exceptions  not  then  signed  and  filed  being  insufficient.4 

So,  refusal  to  permit  a  nonexpert  witness  to  give  his  opinion  as 
to  the  sanity  or  insanity  of  a  person  is  not  error  where  the  facts 
stated  did  not  indicate  that  he  was  insane.6  And  an  opinion  is 
not  warranted  by  testimony  that  the  person  whose  sanity  is 
questioned  was  erratic  and  changeable  and  sometimes  got  angry ; 6' 
or  that  he  was  seen  on  one  occasion  when  he  seemed  to  be  in  a 
study,  and  did  not  reply  when  spoken  to,  and  seemed  not  to 
recognize  the  witness  or  know  that  he  was  passing ; 7  or  that  he 
did  not  eat  with  the  family  where  he  lived,  or  speak  to  the  wit- 
ness or  his  family,  and  was  in  some  respects  peculiar  in  his 
habits ; 8  or  that  he  lost  his  way  near  his  home  and  sometimes 
addressed  one  of  his  daughters  by  the  name  of  another  and 
seemed  low  spirited  and  cried  and  sat  all  day  without  talking 

61  Pa.  401;  First-Nat.  Bank  v.  Wirebach,  106  Pa.  37,  12  W.  N.  C.  150; 
Stokes  v.  Miller,  10  W.  N.  C.  241. 

1  O'Connor  v.  Madison,  98  Mich.  183;  People  v.  Borgetto,  99  Mich.  336; 
State  v.  Brooks,  4  Wash.  328.  And  see  Boorman  v.  Northwestern  Mut. 
Relief  Asso.  90  Wis.  144. 

4  Pittard  v.  Foster,  12  111.  App.  132;  First  Nat.  Bank  v.  Wirebach,  106 
Pa.  37;  State  v.  Brooks,  4  Wash.  328. 

8  Fisher  v.  State,  30  Tex.  App.  502. 

4  Sutherland  v.  Hankins,  56  Ind.  343. 

6  State  v.  Williamson,  106  Mo.  162. 

6  Prentis  v.  Bates,  88  Mich.  567. 

'•  Shaver  v.  McCarthy,  110  Pa.  339. 

8  Stewart  v.  Eedditt,"  3  Md.  67. 


EVIDENCE    OF    INSANITY.  575 

unless  someone  spoke  to  him.1  Nor  is  the  expression  of  an 
opinion  justified  by  evidence  of  frequent  conversations  with  a 
testatrix  about  her  children,  her  life,  hardships  which  she  had 
gone  through,  and  other  little  family  matters ; 2  or  by  evidence 
that  a  testator  was  a  man  of  active  habits,  but  had  had  paralysis, 
after  which  there  was  a  change  in  him,  his  physical  capacity  and 
activity  and  speech  being  affected,  and  expression  of  his  coun- 
tenance changed,  and  that  it  required  an  effort  to  speak,  and  that 
he  did  not  look  intelligent  and  seemed  to  be  afflicted  and  dis- 
tressed.3 And  evidence  that  a  testatrix  suffered  during  a  desig- 
nated year  with  a  form  of  senile  dementia  indicated  by  feebleness, 
and  passed  abruptly  in  December  of  that  year  into  complete 
senile  dementia,  is  not  sufficient  to  warrant  a  positive  opinion  as 
to  whether  the  change  had  gone  far  enough  in  June  of  that  year 
to  destroy  testamentary  capacity."  So,  testimony  as  to  a  change  of 
physical  appearance  on  the  part  of  a  grantor,  and  as  to  conversa- 
tions about  business,  will  not  warrant  the  expression  of  an  opinion 
as  to  capacity  to  dispose  of  property  by  one  who  had  had  no 
business  transactions  with  him  for  years,  and  who  had  not  seen 
him  transact  business.5  But  evidence  that  a  grantor  was  in  the 
habit  of  drinking  to  excess,  and  appeared  to  be  afraid  that  his 
own  slaves  would  kill  him,  sufficiently  qualifies  the  witness  to 
give  an  opinion,8  though  evidence  of  long  acquaintance  and 
friendly  relations  with  a  person  accused  of  killing  his  wife,  after 
a  separation  from  her,  and  of  conversations  about  the  separation, 
gives  no  facts  authorizing  an  opinion  as  to  his  insanity.7 

It  is  not  correct  to  say,  however,  that  the  opinion  of  a  witness 
as  to  the  mental  condition  of  another  is  entitled  to  consideration 
only  so  far  as  the  facts  stated  by  him  sustain  the  opinion,  unless 
the  proposition  is  understood  to  include  among  the  facts  referred 
to  the  acquaintance  of  the  witness  with  the  subject-matter  and 
his  opportunities  for  observation.8     And  the  rule  that  witnesses 

1  Lynch  v.  Doran,  95  Mich.  396. 

s  Buys  v.  Buys,  99  Mich.  354. 

8  First  Nat.  Bank  v.  Wirebach,  12  W.  N.  0.  150. 

*  Lennig's  Estate,  4  Pa.  Dist.  R.  94. 

6  Elcessor  v.  Elcessor,  146  Pa.  359. 

6  Dicken  v.  Johnson,  7  Ga.  484. 

'  State  v.  Brooks,  4  Wash.  328. 

8  Shanley's  Appeal,  62  Conn.  325. 


576  MEDICAL   JUfSISPKUDENCE   OF   INSANITY. 

must  state  the  facts  upon  which  their  opinions  are  based  does  not 
require  them  to  describe  that  which  is  not  susceptible  of  descrip- 
tion or  to  relate  facts  enough  to  enable  the  jury  to  form  an 
opinion  from  them  alone.1  And  the  fact  that  a  witness  is  unable 
to  give  conversations  with  the  person,  but  can  only  state  the 
manner  in  which  he  conversed  and  that  the  facts  known  to  him 
were  limited  in  their  character,  does  not  render  his  opinion  inad- 
missible.2 The  question  whether  the  facts  stated  are  sufficient  to 
warrant  an  opinion  is  one  of  law  for  the  court.3  And  it  is  the 
right  of  the  opposite  party  to  cross-examine  the  witnesses,  before 
the  court  passes  upon  the  question.'1  And  the  decision  rests  in 
the  exercise  of  a  wise  legal  discretion  which  will  not  be  disturbed 
except  in  case  of  abuse.5  The  reasons  of  the  witnesses  for  their 
opinions,  however,  are  for  the  consideration  of  the  jury,  and  not 
of  the  court.6  And  where  any  material  facts  are  stated  warrant- 
ing an  inference  that  the  witness  has  sufficient  knowledge  to  form 
an  opinion,  it  is  the  duty  of  the  court  to  permit  them  to  go  to  the 
jury  for  whatever  they  may  be  worth.7  The  mere  fact  that  a 
witness  who  had  an  opportunity  to  form  a  correct  judgment  is 
unable  to  state  the  circumstances  upon  which  his  opinion  is  based,8 
or  that  the  circumstances  stated  by  him  did  not  justify  his 
opinion,9  does  not  warrant  the  court  in  excluding  it  or  in  instruct- 
ing the  jury  to  disregard  it,  the  extent  of  the  knowledge  of  the 
witnesses  where  there  is  sufficient  evidence  to  go  to  the  jury  going 
to  the  effect  to  be  given  to  the  opinion  rather  than  to  its 
admissibility.10 

1  Beaubien  v.  Cicotte,  12  Mich.  459. 
8  Foster  v.  Dickerson,  64  Vt.  233. 

3  Colee  v.  State,  75  Ind.  513;  Denning  v.  Butcher,  91  Iowa,  425;  Wkite- 
nack  v.  Stryker,  2  K  J.  Eq.  8;  First  Nat.  Bank  v.  Wirebach,  12  W.  N.  C. 
150;  Boorman  v.  Northwestern  Mut.  Belief  Asso.  90  Wis.  144. 

4  First  Nat.  Bank  v.  Wirebach,  12  W.  N.  C.  150. 

5  Denning  v.  Butcher,  91  Iowa,  425;  Boorman  v.  Northwestern  Mut.  Belief 
Asso.  90  Wis.  144. 

6  Gray  v.  Obear,  59  Ga.  675;  McClackey  v.  State,  5  Tex.  App.  320.  And 
see  Colee  v.  State,  75  Ind.  513;  Foster  v.  Dickerson,  64  Yt.  233. 

'  Goodwin  v.  State,  96  Ind.  550. 

8  Stubbs  v.  Houston,  33  Ala.  555. 

9  Stubbs  v.  Houston,  33  Ala.  555;  Chickering  v.  Brooks,  61  Vt.  554. 
10  See  infra,  %  18,  Weight — nonexpert  opinions. 


EVIDENCE    OF    INSANITY.  577 

The  opinion  is  not  evidence,  however,  unless  the  jury  finds  the 
facts  proved  upon  which  it  is  based,  but  when  such  facts  are  found 
the  opinion  is  a  fact  for  the  jury  to  consider  in  connection  with 
other  evidence.'  A  nonexpert  witness  may  relate  facts  observed 
by  him  without  expressing  an  opinion,  leaving  it  to  the  jury 
to  draw  its  conclusions  therefrom  on  the  question  of  mental  ca- 
pacity.2 

§  13.  Facts  which  may  he  shown  as  a  basis  for  an  opinion. 
The  court  in  deciding  a  question  of  sanity  or  insanity  relies 
upon  the  facts  and  circumstances  proved  by  an  expert  witness 
rather  than  upon  the  opinions  expressed  by  him,3  and  forms  its 
opinion  from  the  whole  evidence  consisting  of  facts  and  opinions.4 
And  a  witness  in  giving  the  facts  upon  which  he  bases  his  opin- 
ion should  be  permitted  to  state  everything  which  could  be  rea- 
sonably made  the  foundation  of  an  opinion  as  to  the  mental  con- 
dition of  the  person  in  question,6  whether  occurring  before  or 
after  the  time  his  mind  is  claimed  to  have  failed,  together  with 
what  he  said  and  did,  and  the  change,  if  any,  in  his  manner,  in- 
cluding a  full  history  of  his  life.6  And  where  evidence  of  a  con- 
versation is  given  for  the  mere  purpose  of  laying  a  foundation 
for  the  admission  of  the  witness's  opinion  the  entire  conversation 
must  be  given,  so  far,  at  least,  as  it  forms  a  part  of  the  ground 
upon  which  the  opinion  is  based.7  So,  the  witness  should  be  per- 
mitted to  state  in  what  manner  the  person's  conversation  was  dis- 
connected, as  tending  to  show  his  qualification  and  as  bearing 
upon  the  question  of  mental  capacity.8  And  the  acts  and  con- 
duct of  a  person  accused  of  crime,  while  under  arrest  therefor, 
may  be  given  as  a  basis  for  the  opinion  of  a  witness,  though  the 

1  Foster  v.  Dickerson,  64  Vt.  233. 

2  Sharp  v.  Kansas  City  Cable  E.  Co.  114  Mo.  94. 

3  Hunt  v.  Hunt,  3  B.  Mon.  575;  Cilley  v.  Cilley,  34  Me.  162;  Browne  v. 
Molliston,  3  Whart.  129;  McCullough's  Will,  35  Pittsb.  L.  J.  169;  Newton 
v.  Carbery,  5  Crancb,  C.  C.  626;  Clarke  v.  Cartwright,  1  Phillim.  Eccl.  Bep. 
90. 

4  Newton  v.  Carbery,  5  Crancb,  C.  C.  626. 
6  Burkhart  v.  Gladisb,  123  Ind.  338. 

6  Staser  v.  Hogan,  120  Ind.  227. 
1  Jamison  v.  People,  145  HI.  357. 
6  Be  Goldtliorp,  94  Iowa,  336. 
37 


578  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

accused  was  not  warned  that  his  acts  and  expressions  would  be 
used  against  him.1  So.  a  master  in  chancery  before  whom  a  tes- 
tatrix had  appeared  as  a  witness  may  testify  as  to  the  circum- 
stances under  which  she  gave  her  testimony,  and  as  to  her  appear- 
ance and  deportment  at  the  time,  and  state  what  questions  were 
asked  and  the  answers  she  gave,  for  the  purpose  of  showing  a 
basis  for  his  opinion  as  to  her  mental  condition.2  And  a  petition 
to  the  probate  court  for  an  allowance  to  a  widow  from  her  hus- 
band's estate  is  admissible  in  a  proceeding  to  contest  her  will,  as 
a  part  of  the  res  gestae  forming  a  basis  for  the  opinion  of  her  attor- 
ney as  to  her  insanity,  where  he  details  the  conversations  and 
business  transactions  which  he  had  with  her  at  the  time,  the 
making  of  the  petition  being  one  of  the  transactions  upon  which 
he  based  his  opinion.3 

Evidence  as  to  the  contents  of  a  will  upon  which  a  nonexpert 
witness  bases  his  opinion,  however,  is  not  admissible  unless  the 
loss  or  destruction  of  the  latter  had  been  previously  shown.4 
And  a  witness  in  a  will  contest  cannot  narrate  communications 
from  the  testator  to  her  and  base  her  opinion  upon  them.6  ]Nor 
does  a  statute  permitting  the  opinion  of  an  intimate  acquaintance 
to  be  given  as  to  mental  capacity  authorize  the  accused,  as  a  mat- 
ter of  right,  to  give  statements  made  by  himself  to  witnesses  in 
various  conversations  had  with  them.6  And  the  superintendent 
of  an  insane  asylum  cannot  give  an  opinion  as  to  the  mental  con- 
dition of  a  former  patient  based  on  records  of  the  asylum  made 
before  his  connection  with  it  where  it,  does  not  appear  that  he 
had  any  knowledge  of  the  method  of  keeping  the  record  em- 
ployed at  the  time  it  was  made.7  So,  a  witness  may  be  asked 
whether  he  saw  enough  of  the  person  whose  sanity  is  in  question 
to  warrant  him  in  expressing  an  opinion  as  to  his  sanity  or  insan- 
ity.6    And  a  witness  who  had  stated  that  she  considered  the  tes* 

:  Adams  v.  State,  34  Tex.  Crim.  Eep.  470. 

2  Foster  v.  Dickerson,  64  Vt.  233. 

3  Foster  v.  Dickerson,  64  Yt.  233. 

4  Adams  v.  State,  34  Tex.  Crim.  Eep.  470. 

5  Turner  v.  Cook,  36  Ind.  129. 

6  State  v.  Murray,  11  Or.  413. 

'■  Prentis  v.  Bates,  93  Mich.  234,  17  L.  E.  A.  494. 

i  Watson  v.  Anderson,  11  Ala.  43;  Pannell  v.  Com.  86  Pa.  260. 


EVIDENCE    OF    INSANITY.  579 

tTete^T"0  W^VXdt,ed'  basin"  her  °Pinion  in  P^  «P™  what 
^tId  ab0Ut,her  husband>  "»7  »»  asked  on  cross-exam- 
mat.on  what    he  complaint  of  the  testatrix  against  her  husband 

T,  *w  ,  'f  ?  S  W"neSS  testifying  to  the  insanity  of  a  party 
states  that  he  had  tried  to  buy  land  from  him,  he  nfay  be  asked 
°?e  ^-examination  if  ho  would  have  taken  the  conveyance  had 

oliZ?,  I  "  aT Ptei'  S°'  a  WitMSS  wh0  Jesses  an 
opinion  as  to  the  mental  capacity  of  a  testator  may  be  asked  on 
cross-exam    arion  as  to  any  busine8s  ^^  jj  ^ 

about  the  time  in  question,  and  as  to  the  manner  in  which  he 
conducted  himself;-  and  if  he  knew  of  his  breaking  out  in  prayer 
meeting  with    obscene   language,   and  wanting  fo  go    to  The 

with"!  '  tCT  t™  SCTenty>  a"d  C,aimi"«  to  be  in  love 

with  a  young  girl,  and  if  it  were  true  whether  it  would  influence 
his  impression  «     Where  a  witness  in  a  will  contest  states  upon 

cross-examination  that  he  predicated  his  opinion  upon  what  he 
saw  „,  knew  of  the  testator;  Md  .a  ^  P         ha*  he 

sltTd° ZTT'thrVeV'  the  ktter  Cam0t  be  asked  if  be  had 
stated  that  the  testator  was  irrational  and  wandering  in  his  con- 
versa  ions  or  otherwise.'    And  a  witness  who  had  Lined    hat 

tailed  at0"^086  ""ft  ",  qne8tioned  had  COme  to  *er  house  and 
talked  at  random  and  looked  very  much  like  a  maniac,  and  that 

.onsTf  tvMm',Cann0t  bere<1Vdred  t08tate  the  convert 
tions  bad  with  him,  when  such  conversations  eonstitnted  no  part 
of  the  transaction  in  question  in  the  action  '  P 

is  auezZnT  Cann0t  h!  aSk6d  Wh6ther  the  Pe™*  whose  sanity 
is  questioned  was  considered  to  be  partially  deranged,  sneh  a 

be  cllTed  21     7  ^  "'I8  °™  °Pini011'    ^eanganoPTuion 
ontl  •     P  ♦         UP°n  What  *he  WitneS6es  ba«  heard  such  per- 
versions wlrh  '  qrtI<>n  Ca"ing  fOT  M  °pini0Q  b^ed  upon  Con- 
versations with  such  person,  and  their  character,  and  his  actions 

1  Foster  v.  Diekerson,  64  Vt.  233. 

2  Rush  v.  Megee,  36  Ind.  69. 

3  Roe  v.  Taylor,  45  IU.  485. 

4  BeU  v.  McMaster,  29  Hun,  272. 

e  JigfnS  V'  Carlton>  28  Md-  US,  92  Am.  Dec.  666. 

Taylor  v.  United  States,  7  App.  D.  C   27 
1  Yanke  v.  State,  51  Wis.  464. 
8  Parsons  v.  Parsons,  66  Iowa,  754. 


580  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

at  the  time,  is  not  subject  to  the  objection  that  it  should  have 
included  all  his  observations  during  the  entire  period  of  his 
acquaintance,  where  no  attempt  is  made  to  modify  the  evidence 
by  cross-examination.1  And  a  witness  who  is  competent  to  give 
an  opinion  may,  in  forming  such  opinion,  consider  things  which 
he  saw  and  of  which  he  had  personal  knowledge,  though  he  did 
not  describe  them  to  the  jury,2  including  any  fact  or  circumstance 
within  his  knowledge  or  observation  which  to  him  appears  to 
form  evidence  of  the  person's  mental  condition  at  the  time  in 
question  whenever  it  occurred.3  So,  a  statement  of  all  the  facts 
upon  which  an  opinion  is  based  does  not  seem  to  be  necessary, 
the  requirement  having  been  variously  stated  as  "  of  some  of  the 
facts,"4  or  such  facts  as  the  witnesses  are  able  to  give,5  or  the 
facts  within  their  knowledge,6  the  rule  definitely  stated  being 
that  it  is  sufficient  that  they  state  facts  which  are  visible  and  in- 
telligent appearances  and  acts.7 

§  14.  Scope  of  opinions  of  nonexperts. 

The  opinion  of  a  nonexpert  witness  as  to  sanity  or  insanity 
must  be  limited  to  his  conclusion  with  respect  to  the  facts  testi- 
fied to  by  him,8  and  not  embrace  any  matter  of  law.9  And  where 
the  witnesses  have  given  an  opinion  founded  on  facts  known  to 
them,  they  cannot  be  called  on  to  say  what  their  opinion  would 
have  been  under  a  different  state  of  affairs.10  Nor  can  a  nonex- 
pert state  on  a  trial  for  murder  what  kind  of  fits  the  accused  was 
affected  with,11  or  that  he  had  discovered  the  accused  to  be  a  man 
of  very  weak  mind.12    So,  a  witness  in  a  will  contest  in  which  an 

1  People  v.  Borgetto,  99  Mich.  336. 

2  Mull  v.  Carr,  5  Ind.  App.  491. 

8  Ee  Norman,  72  Iowa,  84. 

4  Crowe  v.  Peters,  63  Mo.  429. 

6  Williams  v.  Lee,  47  Md.  321;  Beaubien  v.  Cicotte,  12  Mich.  459. 
6  Price  t.  Bichmond  &  D.  E.  Co.  38  S.  C.  199. 
1  Beaubien  v.  Cicotte,  12  Mich.  459. 

s  Jamison  v.  People,  145  III.  357;  Butler  v.  St.  Louis  L.  Ins.  Co.  45  Iowa, 
93;  Be  Goldthorp,  94  Iowa,  336;   DeWitt  v.  Barly,  17  N.  Y.  340. 

9  DeWitt  v.  Barly,  17  N.  Y.  340. 

10  Bambler  v.  Tryon,  7  Serg.  &  B.  90,  10  Am.  Dec.  444. 

11  McLean  v.  State,  16  Ala.  672. 

12  Gardiner  v.  People,  6  Park.  Crim.  Bep.  155. 


EVIDENCE    OF    INSANITY.  581 

insane  delusion  is  alleged  cannot  be  asked  whether  the  testator 
was  competent  to  make  a  will  where  it  is  not  denied  that  he  was 
so  except  as  to  the  subject  of  his  delusion.1  And  while  he  is 
competent  to  give  evidence  as  to  his  opinion  as  to  whether  a  person 
accused  of  crime  was  entirely  insane  and  could  not  distinguish 
right  from  wrong  he  would  not  be  so  to  testify  as  to  the  mere 
existence  of  an  insane  delusion.2  So,  vague,  indefinite  expres- 
sions of  a  nonexpert  witness  in  a  criminal  case  that  the  accused 
looked  and  acted  like  an  insane  person  are  not  admissible.3  But 
a  witness  who  had  arrested  the  accused  and  taken  him  to  jail  may, 
after  describing  his  appearance  and  manner  during  that  time,  and 
detailing  what  he  said  and  did,  give  his  opinion  as  to  whether  he 
was  under  the  control  of  an  insane  delusion,  with  reference  to 
the  act  charged.4  So,  insanity  cannot.be  shown  by  evidence  of  a 
nonexpert  witness,  comparing  the  person  with  other  insane  per- 
sons whom  the  witness  claims  to  know,  and  who  are  well  known 
to  be  insane,5  though  he  may  compare  the  mind  and  memory  of 
a  testatrix,  with  reference  to  the  amount  of  property  she  was 
worth  and  the  dispositions  she  wished  to  make  of  it,  with  that  of 
an  average  child  of  a  designated  number  of  years  of  age.6  But 
he  cannot  be  asked  to  contrast  the  testator's  mental  condition  at  a 
time  not  fixed  or  limited  with  his  mental  condition  as  it  had  been 
in  prior  years,7  though  he  may  be  permitted  to  testify  that  he  saw 
no  difference  between  the  testator's  mental  condition  in  sickness 
and  his  mental  condition  in  health,  where  he  had  seen  him  both 
in  sickness  and  in  health.8  So,  a  nonexpert  witness  cannot  give 
an  opinion  as  to  the  sanity  or  insanity  of  another  witness,"  or  as 
to  the  physical  capacity  of  a  testator  to  hold  conversations,  testi- 
fied to  by  another  witness,  where  he  was  not  present  at  that  time.10 
Neighbors  of  a  testator  who  were  well  acquainted  with  him 

1  Taylor  v.  Trich,  165  Pa.  586. 
s  Powell  v.  State,  25  Ala.  21. 

3  Gehrke  v.  State,  13  Tex.  568. 

4  Boiling  v.-  State,  54  Ark.  588. 
6  Gehrke  v.  State,  13  Tex.  568. 

6  Richmond's  Appeal,  59  Conn.  226. 
1  Denning  v.  Butcher,  91  Iowa,  425. 

8  Severin  v.  Zack,  55  Iowa,  28. 

9  Territory  v.  Padilla  (N.  M.)  46  Pac.  346. 
1,1  Higgins  v.  Carlton,  28  Md.  115. 


582  MEDICAL  JURISPRUDENCE   OF   INSANITY. 

and  competent  to  give  opinions,  however,  may  testify  as  to  his 
appearance  and  why  they  thought  he  did  not  recognize  them,  and 
whether  his  mind  was  simply  weakened  or  was  impaired  in  some 
of  its  faculties,  and  whether  he  was  worse  or  better  and  could  or 
could  not  hold  extended  conversation.1  And  a  witness  in  an 
action  founded  upon  a  contract  or  deed  may  be  asked  as  to  the 
capacity  of  the  party  to  transact  business.2  And  so  may  a  wit- 
ness in  a  will  contest.5  And  a  nonexpert  may  testify  as  to  the 
capacity  of  the  testator  to  comprehend  his  property  and  make  an 
intelligent  disposition  thereof  by  will.4  Such  evidence  as  to  the 
competency  of  a  testator  to  make  a  will  is  not  objectionable 
because  the  attention  of  the  witness  was  not  directed  to  the  will 
in  question  where  it  was  not  a  complicated  one."  And  testimony 
that  a  testator  was  not  fit  to  make  a  will  is  not  incompetent,  there 
being  no  distinction  between  competency  to  understand  a  will,  and 
fitness  to  make  one.6  And  refusal  to  admit  an  opinion  as  to 
whether  the  testator  had  mind  enough  to  understand  his  will,  or 
could  have  been  taught  to  understand  it,  is  not  prejudicial  error 
where  he  was  permitted  to  testify  that  he  had  not  mind  enough 
to  make  a  will  and  understand  its  nature  and  contents.7  So,  evi- 
dence upon  an  issue  as  to  the  soundness  or  unsoundness  of  mind 
of  one  for  whom  a  trust  had  been  created,  to  the  effect  that  the 
witness  had  known  him  from  birth  and  that  he  was  not  of  sound 
mind  and  capable  of  managing  his  property,  is  competent."  And 
a  witness  who  had  stated  that  the  testator  had  not  such  knowl- 
edge of  his  property  and  relations  as  to  make  a  proper  and  intelli- 
gent disposition  may  be  asked  on  cross-examination  as  to  his  opin- 
ion of  the  propriety  and  intelligence  of  the  several  dispositions  of 
the  will  and  this  should  be  done,  not  by  handing  him  the  will  to 
consider,  but  by  reading  the  provisions  to  him  and  questioning 
him  with  relation  to  them.9 

1  Meeker  v.  Meeker,  74  Iowa,  352. 

*  Stewart  v.  Spedden,  5  Md.  433;  Wilkinson  v.  Pearson,  23  Pa.  117. 

3  Eeitkley  v.  Stafford,  126  HI.  507. 

4  Porter  v.  Throop,  47  Mich.  313;  Ee  Pinney,  27  Minn.  280;  Bost  v.  Bost, 
87  N.  C.  477. 

5  Bice  v.  Bice,  53  Mich.  432. 

6  Daniel  v.  Daniel,  39  Pa.  191. 

1  Overall  v.  Bland,  11  Ky.  L.  Bep.  371. 
8  Obear  v.  Gray,  73  Gra.  455. 

*  Waters  v.  Waters,  35  Md.  531. 


EVIDENCE   OF    INSANITY.  583 

The  impressions  made  upon  the  mind  of  a  witness  by  the  con- 
duct, manner,  bearing,  conversations,  appearance,  and  acts  of  a 
testator  in  various  business  transactions  for  a  series  of  years, 
however,  is  not  mere  opinion  which  is  admissible  in  evidence,  it 
is  knowledge,  and  strictly  analogous  to  cases  of  personal  identity 
and  handwriting.1  And  evidence  of  feelings  manifested  by  a 
testator  toward  his  brother  is  of  fact  rather  than  an  opinion,  and 
is  admissible  in  a  contest  of  the  will  upon  the  question  of  the 
testator's  insanity.2  Nor  is  the  right  to  testify  as  to  whether  a 
person  appeared  to  be  rational  or  irrational  confined  to  expert 
witnesses  and  intimate  acquaintances,  as  this  does  not  constitute 
giving  an  opinion,  but  is  the  statement  of  an  open  truth  indicated 
to  all  alike.3  So,  evidence  that  a  testator  acted  strangely  or  in  a 
childish  manner  may  be  given  by  a  person  who  saw  him,  stating 
facts  upon  which  the  opinion  was  based.1  And  a  nonexpert  wit- 
ness who  knew  the  facts  may  testify  as  to  the  apparent  physical 
condition  of  a  person,  and  as  to  whether  he  acted  sane  or  insane.5 

§  15.   Opinions  covering  the  question  at  issue. 

The  question  as  to  whether  witnesses  on  the  question  of  in- 
sanity may  give  opinions  covering  the  point  at  issue  has  given 
rise  to  an  apparent  conflict  of  authority.  Thus,  questions  calling 
for  an  opinion  as  to  the  capacity  of  a  person  accused  of  crime  to 
distinguish  between  right  and  wrong,  or  between  right  and  wrong 
with  reference  to  the  particular  act,  have  been  frequently  sus- 
tained ; 6  and  similar  questions  have  been  overruled  for  other 
causes  where  no  objection  was  made  on  that  ground.7  And 
questions  calling  for  opinions  as  to  the  capacity  of  a  party  to 

1  Townshend  v.  Townshend,  7  Gill,  10.  And  see  State  v.  Byan,  cited  in 
1  Jarman,  Wills,  J  22,  note. 

2  Pelamourges  v.  Clark,  9  Iowa,  1. 

3  Holland  v.  ZoUner,  102  Cal.  633;  People  v.  McCarthy,  115  Cal.  255. 

4  Parsons  v.  Parsons,  66  Iowa,  754. 
6  Cannady  v.  Lynch,  27  Minn.  435. 

6  PoweU  v.  State,  25  Ala.  21;  Smith  v.  State,  55  Ark.  259;  State  v.  Porter, 
34  Iowa,  131;  Pflueger  v.  State,  46  Neb.  493;  Clark  v.  State,  12  Ohio,  483, 
10  Am.  Dec.  481;  United  States  v.  Guiteau,  1  Mackey,  498,  47  Am.  Eep. 
247;  M'Naghten's  Case,  10  Clark  &  F.  200. 

7  See  Billings  v.  State,  54  Ark.  588;  Com.  v.  Kich,  14  Gray,  335;  Mendi- 
loa  v.  State,  18  Tex.  App.  462. 


584  MEDICAL    JURISPKUDENCE    OF    INSANITY. 

make  a  contract  or  deed  have  also  been  sustained,1  and  overruled 
in  the  same  manner.2  And  similar  rulings  have  been  made  on 
the  question  as  to  whether  a  testator  possessed  testamentary 
capacity  or  capacity  to  make  the  will  in  question  on  the  one 
hand,3  and  overruled  upon  the  other  on  other  grounds.4  So, 
questions  calling  for  opinions  as  to  the  capacity  of  a  party  to 
manage  himself  and  his  estate  have  been  sustained  in  proceed- 
ings in  the  nature  of  a  writ  de  lunatico  inquirendo  and  under 
the  same  circumstances  ; 5  and  a  question  as  to  what  effect,  if  any, 
the  disease  of  melancholia  would  have  upon  the  power  of  the 
insured  to  control  her  actions  and  resist  any  impulse  with  which 
she  might  be  seized,  is  admissible  in  an  action  upon  an  insurance 
policy  in  which  it  is  claimed  that  the  insured  killed  herself  while 
insane.6  And  it  has  been  held  competent,  in  a  contest  over  the 
probate  of  a  will  which  discriminated  against  some  of  the  chil- 

1  Beller  v.  Jones,  22  Ark.  92;  Stewart  v.  Spedden,  5  Md.  423;  Townskend 
v.  Townskend,  7  Gill,  10;  Wilkinson  v.  Pearson,  23  Pa.  117;  Doe,  Mc- 
Dougald,  v.  McLean,  Winst.  L.  pt.  1,  p.  120;  Cram  v.  Cram,  33  Vt.  15; 
Kilgore  v.  Cross,  1  Fed.  Kep.  578. 

3  Smith  v.  Smith,  157  Mass.  389;  Hyer  v.  Little,  20  N.  J.  Eq.  443. 
3Eoberts  v.  Trawick,  13  Ala.  68;  Ethridge  v.  Bennett,  9  Houst.  (Del.) 

295;  Coryell  v.  Stone,  62  Ind.  307;  Overall  v.  Bland,  11  Ky.  L.  Kep.  371; 
Chandler  v.  Barrett,  21  La,  Ann.  £8,  99  Am.  Dec.  701;  Waters  v.  Waters, 
35  Md.  531;  Dorsey  v.  Warfield,  7  Md.  65;  Hastings  v.  Eider,  99  Mass.  624; 
Bice  v.  Bice,  53  Mich.  432;  Porter  v.  Throop,  47  Mich.  313;  Kempsey  v. 
McGinniss,  21  Mich.  123;  McGinniss  v.  Kempsey,  27  Mich.  363;  McHugh 
v.  Fitzgerald,  103  Mich.  21;  Appleby  v.  Brock,  76  Mo.  314;  Garrison  v. 
Garrison,  15  N.  J.  Eq.  266;  Horah  v.  Knox,  87  N.  C.  490;  Wogan  v.  SmaU, 
11  Serg.  &  K,  131;  Bitner  v.  Bitner,  65  Pa.  347;  Daniel  v.  Daniel,  39  Pa. 
191;  Commonwealth  Title  Ins.  &  T.  Co.  v.  Gray,  150  Pa.  255;  Shaver  v. 
McCarthy,  110  Pa.  339;  Doe,  McDougald,  v.  McLean,  Winst.  L.  pt.  1, 
p.  120;  Brown  v.  Mitchell,  87  Tex.  140;  Cockrill  v.  Cox,  65  Tex.  676;  Garri- 
son v.  Blanton,  48  Tex.  299. 

4  Ee  Taylor,  92  Cal.  564;  Ensh  v.  Megee,  36  Ind.  69;  Prentis  v.  Bates,  93 
Mich.  234,  17  L.  E.  A.  494;  Eice  v.  Eice,  50  Mich.  448,  53  Mich.  432; 
Kempsey  v.  McGinniss,  21  Mich.  123;  Appleby  v.  Brock,  76  Mo.  314;  Ke 
Arnold,  14  Hun,  525;  Taylor  v.  Trich,  165  Pa.  586;  Elcessor  v.  Elcessor, 
146  Pa.  359;  Shaver  v.  McCarthy,  110  Pa.  339;  Lennig's  Estate,  4  Pa.  Dist. 
E.  94;  Stokes  v.  Miller,  10  W.  N.  C.  241;  Vance  v.  Upson,  66  Tex.  476; 
Kerr  v.  Lunsford,  31  W.  Ya.  680,  2  L.  E.  A.  668. 

5  Ee  Mason,  60  Hnn,  46;  Obear  v.  Gray,  73  Ga.  455. 

6  Koenig  v.  Globe  Mut.  L.  Ins.  Co.  lO^Hun.  558. 


EVIDENCE    OF    INSANITY.  585' 

dren  of  the  testator,  to  ask  a  medical  expert  whether  in  his 
opinion,  on  an  assumed  state  of  facts,  the  testator  was  capable 
of  comprehending  his  moral  obligations  to  his  children  as  bearing 
upon  his  competency  to  make  a  will.1  And  in  a  late  case  in 
the  United  States  Supreme  Court  an  expert  in  a  prosecution  for 
homicide  was  permitted  to  be  asked  on  cross-examination  if  from 
his  experience  and  conversations  with  the  accused  he  thought 
he  killed  the  man  because  he  threatened  his  life.2 

Upon  the  other  hand,  the  contrary  rule  has  been  generally,  if 
not  universally,  held  in  cases  in  which  the  objection  that  the 
question  covered  the  point  at  issue  has  been  made,  and  it  has 
been  held  that  experts  cannot  be  asked  the  broad  question 
whether  or  not  they  considered  the  person  whose  sanity  is  in 
question  out  of  his  mind,  or  whether  his  mind  was  so  affected  as 
to  be  unfit  to  transact  business,3  or  give  their  opinions  upon  the 
whole  case,  as  this  would  necessarily  include  a  determination  of 
what  are  the  facts;4  though  the}''  may  give  opinions  on  similar 
cases  hypothetically  stated.5  Hypothetical  questions  must  be  so 
shaped,  however,  as  to  give  the  witness  no  occasion  to  draw  his. 
conclusion  from  the  evidence  as  to  the  weight  or  credibility 
thereof,6  and  are  not  to  be  based  upon  facts  in  relation  to  which 
there  is  conflicting  and  contradictory  testimony,  and  which  virtu- 
ally requires  them  to  assume  the  province  of  the  jury  in  weighing 
the  testimony.7  Thus  with  relation  to  criminal  prosecutions  an 
expert  witness  may  give  his  opinion  as  to  the  state  of  mind  of  the 
accused,  but  not  as  to  his  responsibility,  that  being  a  question  for  the 

1  Eivard  v.  Kivarcl  (Mich.)  2  Det.  L.  N.  1003. 

2  Davis  v.  United  States,  165  U.  S.  373,  41  L.  ed.  750. 

3  Deshon  v.  Merchants'  Bank,  8  Bosw.  461 ;  Chickering  v.  Brooks,  61 
Vt.  554. 

4  Negroes  Jerry,  v.  Townshend,  9  Md.  145;  Yardley  v.  Cuthbertson,  108 
Pa.  395,  56  Am.  Kep.  218;  Be  McCarthy,  55  Hun,  7. 

5  Negroes  Jerry,  v.  Townshend,  9  Md.  145;  Gunter  v.  State,  83  Ala.  96; 
Coyle  v.  Com.  104  Pa.  117. 

6  Com.  v.  Bogers,  7  Met.  500,  41  Am.  Dec.  458;  McMechen  v.  Mc- 
Mechen,  17  W.  Va.  683,  41  Am.  Bep.  682. 

:  Gunter  v.  State,  83  Ala.  96;  Smith  v.  Hickenbottom,  57  Iowa,  733; 
Coyle  v.  Com.  104  Pa.  117;  Fairckild  v.  Bascomb,  35  Vt.  398;  Bennett  v. 
State,  57  Wis.  67,  46  Am.  Bep.  26.  And  see  Fayette  v.  Chesterville,  77 
Me.  28,  52  Am.  Bep.  741. 


586  MEDICAL   JURISPRUDENCE    OE    INSANITY. 

jury.1  And  he  cannot  be  asked  his  opinion  as  to  whether  the  accused 
was  capable  of  judging  between  right  and  wrong.2  Nor  should  he  be 
asked  his  opinion  as  to  the  sanity  or  insanity  of  the  accused  at  the 
time  of  the  trial,  based  upon  the  testimony  adduced  at  the  trial,3 
or  formed  from  his  observation  of  his  conduct  on  the  trial,4  as 
this  would  practically  put  him  in  the  place  of  the  jury.  Nor 
should  he  be  permitted  to  express  an  opinion  that  the  accused 
acted  under  an  insane  delusion  or  was  impelled  by  an  irresistible 
impulse,5  or  that  he  should  have  the  benefit  of  every  reasonable 
doubt  that  may  arise  as  to  his  sanity,  where  he  had  been  undeni- 
ably subject  to  fits  of  epilepsy.6 

So,  a  witness  will  not  be  permitted  to  give  an  opinion  as  to  the 
capacity  of  another  to  make  a  contract  or  deed  or  other  instru- 
ment, where  it  assumes  the  shape  and  has  the  effect  of  being  an 
opinion  upon  the  legal  capacity  of  the  party  in  question.7  He 
may  be  asked  as  to  his  sanity  or  insanity  upon  the  facts  where 
they  are  certain,  or  upon  a  case  hypothetically  stated,  but  he  can- 
not determine  what  the  facts  are  from  the  evidence,  and  give  his 
opinion  upon  them.8  ISTor  is  a  question  proper  which  would  make 
the  question  of  the  competency  of  the  party  depend  upon  the  degree 
of  intelligence  which  the  witnesses  might  think  necessary  to  sus- 
tain the  instrument.9  So,  while  nonexperts  may  express  an  opin- 
ion as  to  the  soundness  of  mind  of  a  party  upon  an  issue  as  to 
whether  he  was  incapable  of  managing  his  estate,  they  cannot  give 
an  opinion  as  to  his  capacity  to  conduct  the  ordinary  affairs  of 
life,10  though  a  witness  may  express  the  extent  of  the  incapacity 
of  a  party  by  saying  that  he  has  not  sufficient  mental  capacity  to 
transact  business  when  from  the  connection  in  which  the  words 

1  Reg.  v.  Richards,  1  Fost.  &  F.  87;  Reg.  v.  Burton,  3  Fost.   &  F.  772; 
People  v.  Thurston,  2  Park.  Grim.  Eep.  49. 

2  Shults  v.  State,  37  Neb.  487;  Eeg.  v.  Lay  ton,  4  Cox,  0.  C.  149. 

3  Reed  v.  State,  62  Miss.  405. 

4  State  v.  Felter,  25  Iowa,  67. 

8  Patterson  v.  State,  86  Ga.  70. 

6  State  v.  Klinger,  46  Mo.  224. 

7  Conner  v.  Stanley,  67  Cal.  315;   Brown  v.  Mitchell,  88  Tex.  350,   36  L. 
R.  A.  64;   Schneider  v.  Manning,  121  111.  376. 

8  Dexter  v.  Hall,  82  U.  S.  15  Wall.  9,  21  L.  ed.  73. 

9  Aiman  v.  Stout,  42  Pa.  114. 

10  Hamrick  y.  State,  134  Ind.  324. 


EVIDENCE    OF    INSANITY, 


58^ 


are  used  it  can  be  seen  they  best  convey  his  own  ideas  of  the 
matter.1 

Nor  is  capacity  to  make  a  will  a  simple  question  of  fact ;  it  is 
a  conclusion  arising  from  certain  facts.  And  while  a  competent 
witness  may  give  an  opinion  as  to  the  mental  condition  of  the 
testator,  an  opinion  as  to  his  capacity  to  make  a  will  is  inadmis- 
sible ;  *  that  is  a  question  for  the  jury  to  determine  from  the  facts.3 
And  a  question  calling  for  such  an  opinion  is  objectionable  as 
requiring  the  witness  to  determine  for  himself  what  in  law  con- 
stitutes testamentary  capacity/  No  witness  in  a  will  contest, 
whether  he  be  a  subscribing  witness,  an  expert,  or  a  nonexpert, 
can  state  his  opinion  of  the  capacity  of  a  testator  to  make  a  will, 
when  it  assumes  the  shape  and  has  the  effect  of  being  an  opinion 
as  to  his  legal  capacity.2  They  should  be  asked  for  opinions  as  to 
the  real  state  of  the  testator's  mind,  how  much  intelligence  he 
possesses,  and  how  far  he  was  capable  of  understanding  the  nature 
and  sitnation  of  his  property  and  his  relation  to  others,  and  the 
reasons  for  giving  or  withholding  his  bounty,  as  distinguished 
from  questions  as  to  whether  he  had  a  disposing  mind  and  mem- 
ory or  whether  he  was  capable  of  making  a  will.'  So,  hypotheti- 
cal questions  must  be  so  shaped  as  to  give  the  witness  no  occasion 
to  draw  his  conclusion  from  the  evidence,  or  to  decide  as  to  the 
weight  of  evidence  or  the  credibility  of  witnesses/  And  he  can- 
not be  asked  whether  the  testator  was  subject  to  a  delusion.9 
And  the  question  as  to  whether  a  change  in  a  testator's  lifelong 

1  Chickering  v.  Brooks,  61  Vt.  554. 

2  Brown  v.  Mitchell,  88  Tex.  350,  36  L.  E.  A.  64;  Walker  v.  Walker,  34 
Ala.  469;  Ee  Taylor,  92  Cal.  564;  Keithley  v.  Stafford,  126  HI.  507;  May 
v.  Bradlee,  127  Mass.  414;  Hall  v.  Perry,  87  Me.  569;  Kempsey  v.  McGin- 
niss, 21  Mick.  123;  White  v.  Bailey,  10  Mich.  155;  Farrell  v.  Brennan,  32 
Mo.  328,  82  Am.  Dec.  137;   Wisener  v.  Maupin,  2  Baxt.  342. 

3  Schneider  v.  Manning,  121  HI.  376;  Eunyan  v.  Price,  15  Ohio  St.  1,  86 
Am.  Dec.  459. 

4  Kempsey  v.  McGinniss,  21  Mich.  123;  Horah  v.  Knox,  87  N.  C.  490; 
Eunyan  v.  Price,  15  Ohio  St.  1,  86  Am.  Dec.  459. 

5  Brown  v.  MitcheU,  88  Tex.  350,  36  L.  E.  A.  64. 

€  Kempsey  v.  McGinniss,  21  Mich.  123;  Keithley  v.  Stafford,  126  HI. 
507;   Fairchild  v.  Bascomb,  35  Vt.  398. 

7  Kerr  v.  Lunsford,  31  W.  Va.  680,  2  L.  E.  A.  668. 

8  Eush  v.  Megee,  36  Ind.  69. 


588  MEDICAL    JURISPRUDENCE   OF    INSANITY. 

purpose,  made  on  his  deathbed  without  apparent  reason,  indicates 
a  change  in  his  mental  powers,  is  not  one  for  an  expert.1  The 
admission  in  evidence  of  opinions  on  the  general  question  of  tes- 
tamentary capacity,  however,  though  erroneous,  does  not  require 
a  reversal  where  the  facts  were  competent  evidence  and  sufficient 
to  uphold  the  determination,2  or  where  the  objection  was  general 
and  did  not  call  attention  to  the  form  of  the  question.3  And  an 
opinion  of  a  witness  will  be  regarded  as  a  statement  as  to  the  con- 
dition of  the  testatrix  if  practicable  rather  than  as  an  expression 
as  to  his  competency  to  make  a  will,  and  therefore  inadmissible.* 

§  16.  Time  to  which  opinion  evidence  relates. 
Opinions  of  witnesses  on  the  question  of  sanity  or  insanity  of  a 
person  must  be  confined  to  periods  upon  which  the  witness  testi- 
fies that  he  had  observed  his  conduct  and  appearance.5  And.  they 
cannot  be  required  to  give  opinions  as  to  capacity  previous  to 
that  time.6  Thus,  nonexpert  witnesses  cannot  give  their  opinions 
in  a  will  contest  as  to  the  mental  condition  of  a  testator  on  the 
day  of  the  execution  of  the  will  when  they  did  not  see  him  on 
that  day.7  Nor  can  they  be  asked,  whether  or  not  a  testator  was 
of  sound  mind,  without  fixing  the  time  to  which  the  question 
relates.8  And  the  opinion  of  a  witness  as  to  the  sanity  of  a 
person  accused  of  crime,  who  had  stated  that  he  knew  him 
some  years  since,  will  be  taken  as  referring  to  the  period  of 
his  acquaintance  up  to  the  time  he  last  saw  him,  and  not  to 
the  time  of  the  trial.9  And  the  opinions  of  medical  men 
who  give  certificates  adjudging  a  party  to  a  contract  to  be 
insane  at  or  about  the  time  of  making  the  contract  is  evi- 
dence  only  upon    the  question  of  his  insanity  at  that  time.10 

1  Ke  Nelson,  39  Minn.  204. 

2  Clapp  v.  Fullerton,  34  N.  Y.  190,  90  Am.  Dec.  681;  Vance  v.  Upson,  66 
Tex.  476. 

3  Foster  v.  Dickerson,  64  Vt.  233. 

4  McHugh  v.  Fitzgerald,  103  Mich.  21. 

5  Shults  v.  State,  37  Neb.  481;  Eunyan  v.  Price,  15  Ohio  St.  1,  86  Am 
Dec.  459;  Woodcock  v.  Johnson,  36  Minn.  217. 

6  Eunyan  v.  Price,  15  Ohio  St.  1,  86  Am.  Dec.  459. 

7  Blake  v.  Bourke,  74  Iowa,  519. 

8  Denning  v.  Butcher,  91  Iowa,  425. 

9  Powell  v.  State,  25  Ala.  21. 

10  Lovatt  v.  Tribe,  2  Fost.  &  F.  9. 


EVIDENCE    OF    INSANITY. 


589 


So,  a  witness  must  state  his  opinion  as  to  the  mental  capacity  of 
the  person  in  question  at  the  time  of  giving  his  testimony,  and 
not  the  opinion  which  he  entertained  several  years  before  at  about 
the  time  of  the  act  in  question,  and  which  subsequent  considera- 
tion and  reflection  might  have  satisfied  him  was  erroneous.1 

The  fact  that  a  nonexpert  witness  did  not  form  his  opinion  at 
the  time  he  saw  and  observed  the  facts  testified  to  by  him,  how- 
ever, does  not  render  his  opinion  inadmissible.2  And  the  testi- 
mony of  a  medical  expert  as  to  the  sanity  of  a  person  accused  of 
crime,  founded  upon  his  appearance  at  the  time  of  the  trial,  is 
admissible.3  And  a  medical  witness  may  testify  from  an  exami- 
nation made  in  July  as  to  whether  the  accused  was  insane  during 
the  preceding  March.4  And  physicians  who  had  previously 
attended  a  testator  on  his  deathbed  may  be  permitted  to  testify 
as  to  their  opinion  of  his  mental  capacity  immediately  before  and 
after  the  execution  of  the  will  during  his  sickness.5  So,  witnesses 
in  a  prosecution  for  murder  may  give  their  opinions  as  to  the 
state  of  the  defendant's  mind  prior  to  and  at  the  time  of  the  com- 
mission of  the  act.6  And  where  the  physician  was  acquainted 
with  the  defendant  and  with  his  mental  condition  at  a  prior  period 
of  his  life  when  he  was  insane,  he  may  state  his  opinion  as  to  his 
sanity  or  insanity  at  that  time  as  bearing  upon  his  mental  con- 
dition at  the  time  of  the  commission  of  the  crime.7  But  a  physi- 
cian who  attended  a  testator  about  a  week  after  he  had  a  stroke 
of  paralysis  cannot  be  asked,  on  application  to  set  aside  the  pro- 
bate of  his  will,  whether  he  considered  him  possessed  of  testa- 
mentary capacity  between  the  time  of  his  shock  and  the  time  of 
his  death.8  And  after  a  lapse  of  more  than  fifty  years  with 
opportunity  at  all  times  to  contest  a  will  in  the  ordinary  way  the 
door  will  not  be  open  to  mere  speculative  opinion  as  to  the  mental 
condition  of  the  testator.9 

1  Eunyan  v.  Price,  15  Ohio  St.  1,  86  Am.  Dec.  459. 

2  Hathaway  v.  National  L.  Ins.  Co.  48  Vt.  336. 

3  McAllister  v.  State,  17  Ala.  434,  52  Am.  Dec.  180. 

4  Freeman  v.  People,  4  Denio,  9,  47  Am.  Dec.  216. 
6  Hastings  v.  Eider,  99  Mass.  624. 

6  Baldwin  v.  State,  12  Mo.  227. 
1  State  v.  Felter,  25  Iowa,  67. 

8  Ee  Arnold,  14  Hun,  525. 

9  Chase  v.  Winans,  59  Md.  475. 


590  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

§  17.    Weight — Expert  opinion. 

While  expert  opinions  as  to  insanity  are  to  be  received  with 
caution  and  subjected  to  patient  and  intelligent  investigation, 
they  are  entitled  to  great  weight,2  particularly  where  the  expert 
witnesses  have  special  opportunities  for  observation;3  and  the 
court  on  habeas  corpus  to  discharge  a  person  from  an  asylum  will 
not  reject  as  erroneous  the  uncontradicted  opinions  of  unpreju- 
diced experts  of  high  standing  that  he  is  insane,  simply  because 
it  cannot  detect  the  existence  of  the  mental  disorder.4  So  the 
evidence  of  a  medical  expert  in  a  criminal  prosecution  will  not 
justify  a  verdict  of  insanity  where  he  gives  his  opinion  that  the 
accused  was  in  a  measure  able  to  distinguish  right  from  wrong.5 
The  weight  of  the  opinion  of  an  expert  depends  upon  the  experi- 
ence, study,  scientific  eminence,  and  professional  character  and 
standing  of  the  witness,6  and  the  jury  should  consider  whether 
the  testimony  of  an  expert  is  partisan  in  its  character  or  biased 
by  any  leaning  for  or  against  any  of  the  parties ; 7  and  the  opinion 
of  a  physician  who  had  not  studied  the  progress  of  the  disease  in 
question,  and  who  had  limited  opportunities  for  observing  the 
personal  habits  and  conduct  of  the  person  whose  sanity  is  in  ques- 
tion, is  of  little,  if  any,  value.3  Nor  will  a  person  be  interdicted 
on  the  ground  of  idiocy  and  imbecility  on  the  evidence  of  two 
medical  witnesses  neither  of  whom  had  ever  conversed  with  him 
until  the  day  before  the  filing  of  their  report,  and  who  had  had 
no  opportunity  to  test  his  mental  condition.9 

The  opinions  of  experts  must  be  brought  to  the  test  of  facts 

1  Wilcox  v.  State,  94  Term.  106;  People  v.  Lake,  12  N.  Y.  358. 

2  Choice  v.  State,  31  Ga.  424;  Cheatham  v.  Hatcher,  30  Gratt.  56,  32  Am. 
Rep.  650;  Montague  v.  Allan,  78  Ya.  592,  49  Am.  Eep.  384;  Nicholas  v. 
Kershner,  20  YV.  Ya.  251;  Jarrett  v.  Jarrett,  11  W.  Va.  584. 

3  Cheatham  v.  Hatcher,  30  Gratt.  56,  32  Am.  Rep.  650;  Montague  v. 
Allan,  78  Ya.  592,  49  Am.  Rep.  384;  Nicholas  v.  Kershner,  20  W.  Va.  251; 
Jarrett  v.  Jarrett,  11  W.  Va.  584. 

4  Sherman's  Petition,  17  R.  I.  356. 

5  State  v.  Kalb,  2  Ohio  L.  N.  364. 

6  Jamison  v.  Jamison,  3  Houst.  (Del.)  108;  People  v.  Kemmler,  119  N. 
Y.  580;  People  v.  Lake,  2  Park.  Crim.  Rep.  215. 

7  Rush  v.  Megee,  36  Ind.  69. 

8  State  v.  Kalb,  2  Ohio  Leg.  News,  364. 

9  Watson's  Interdiction,  31  La.  Ann.  757. 


EVIDENCE   OF    INSANITY.  591 

that  the  court  may  judge  what  weight  they  are  entitled  to,'  the 
question  whether  the  hypothesis  corresponds  with  the  facts  being 
for  the  jury.2  And  they  can  be  of  but  little  value  where  the  facts 
upon  which  they  are  predicated  are  not  established,3  or  where  the 
hypothetical  question  put  to  the  witnesses  is' wholly  or  materially 
incorrect  or  not  justified  by  the  evidence,4  or  where  it  is  founded 
on  reasons  which  are  absurd  or  not  well  founded  ;6  and  the  evidence 
of  a  medical  expert  in  a  will  contest  on  the  question  of  testamen- 
tary capacity,  whose  opinion  is  based  upon  supposed  facts  not 
borne  out  by  the  testimony,  and  evidence  which  in  no  way  tends 
to  show  that  the  testator  was  not  sane,  is  not  sufficient  to  shift 
the  burden  of  proof  of  mental  capacity  to  the  proponents.6  An 
instruction  that  the  jury  ought  to  consider  and  weigh  all  the  evi- 
dence, including  the  evidence  of  experts,  tending  to  show  the 
condition  of  the  testator's  mind,  however,  is  not  subject  to  the 
objection  that  it  directs  the  jury  that  they  may  give  more  weight 
to  the  opinions  of  experts  than  others,  though  some  of  the  assumed 
facts  stated  in  the  hypothetical  question  might  have  been  found 
to  be  untrue.'  And  refusal  to  instruct  that  no  weight  is  to  be 
given  to  the  evidence  of  experts  when  some  of  the  "facts  upon 
which  hypothetical  questions  are  based  are  not  found  to  be  true 
is  not  prejudicial  error,  where  the  court  had  instructed  that  the 
weight  of  such  opinion  was  for  the  jury  to  consider  in  view  of  all 
the  other  testimony  in  the  case.8 

Scientific  evidence  is  not  necessarily  required,  however,  to  satisfy 
a  jury  of  the  insanity  of  a  person  ;  it  is  sufficient  if  the  evidence 
of  the  facts  was  such  as  to  indicate  an  insane  state  of  mind.9     For 

1  Stackhouse  v.  Horton,  15  N.  J.  Eq.  202. 

2  People  v.  Lake,  12  N.  Y.  358;  People  v.  Thurston,  2  Park.  Crim.  Eep. 
49;  M'Naghten's  Case,  10  Clark  &  F.  200;  Eex  v.  Searle,  1  Moody  &  E.  75. 

3  First  Nat.  Bank  v.  Wirebach,  106  Pa.  37;  Hovey  v.  Cliase,  52  Me.  304, 
83  Am.  Dec.  514.  And  see  Stackhouse  v.  Horton,  15  N.  J.  Eq.  202;  Prinsep 
v.  Dyce  Sombre,  10  Moore,  P.  C.  C.  232. 

4  Guetig  v.  State,  66  Ind.  94,  32  Am.  Eep.  99;  Ee  Lyddy,  24  N.  Y  S  E 
607. 

6  Crockett  v.  Davis,  81  Md.  134. 
6  Ee  Lyddy,  24  N.  Y.  S.  E.  607. 
1  Bever  v.  Spangler,  93  Iowa,  576. 

8  Bever  v.  Spangler,  93  Iowa,  576. 

9  Eeg.  v.  Dart,  U  Cox,  C.  C.  143;  People  v.  Finley,  38  Mich.  482;  Beau- 
bien  v.  Cicotte,  12  Mich.  459. 


MEDICAL    J  URISPECDENCE    OF    INSAXITT. 

legal  purposes  incapacity,  either  criminal  or  civil,  must  be  judged 
from  manifestations  of  conduct  and  language,  and  the  circum- 
stances and  symptoms  with  reference  to  which  a  physician  alone 
can  perceive  mental  disorder  may  aid  in  understanding  the  mani- 
festations subsequently  appearing,  but  can  have  little  further 
value  ; 1  and  expert  testimony  which,  is  made  up  largely  of  mere 
theory  and  speculation,  and  which  suggests  mere  possibilities,  ought 
never  to  be  allowed  to  overcome  clear  and  well-established  facts.2 
Thus,  the  opinions  of  the  neighbors  of  a  person  who  are  men  of 
good  common  sense  are  of  more  value  than  those  of  medical  ex- 
perts, upon  the  question  whether  the  mental  disease  with  which 
the  testator  was  afflicted  had  reached  such  a  stage  as  to  render 
him  incapable  of  making  a  will  or  contract,  or  irresponsible  for 
his  acts.'  And  letters  evidencing  a  sound,  discriminating  mind 
are  more  reliable  than  speculations  and  opinions  of  witnesses  as 
to  mental  incapacity.4  So,  the  testimony  of  a  physician  who 
formed  his  opinion  from  the  condition  of  the  testatrix,  and  not 
from  conversations  with  her.  against  mental  capacity,  who  at  first 
had  many  opportunities  of  forming  such  opinion  but  whose  inter- 
' oews  later  were  more  seldom,  will  not  warrant  the  rejection  of 
testimony  in  favor  of  mental  capacity  of  all  those  who  were  about 
her  deathbed,  and  whose  intercourse  was  frequent,  and  who  had 
conversed  with  her  on  many  questions  and  saw  business  trans- 
acted by  her,  and  were  the  witnesses  to  a  codicil  to  her  will.8 
Mor  will  a  will  be  refused  probate  on  the  opinion  of  a  medical 
expert  against  testamentary  capacity,  where,  in  order  to  do  so,  it 
would  be  necessary  to  find  as  a  fact  that  each  of  the  subscribing 
witnesses  had  committed  wilful  perjury.6 

So.  the  opinion  of  a  physician  who  attended  a  testator  during 
his  last  illness  is  entitled  to  more  weight  on  the  question  of  testa- 
mentary capacity  than  the  opinions  of  physicians  who  had  not 

1  Frasez  v.  Jennie  an,  12  Mieh.  206. 

;  State  v.  Hockett,  70  Iowa,  442;  Bttrley  v.  McGougk,  115  HI.  11;  Rankin 
t.  Eankin,  61  Mo.  295;  Be  Andrews,  33  N.  J.  Eq.  514;  Palmer's  Estate,  5 
W.  U.  C.  54-. 

;  Eutherford  v.  Morris,  77  El.  397. 

*  Harx  rr  v.  Harper,  1  Thomp.  k  C.  351. 

•  Crolius  v.  Stack,  M  Barb.  112. 
'BeLyddy,  17  N.  Y.  &  E.  2. 


EVIDENCE    OF    INSANITY. 


593 


this  advantage  ;]  though  evidence  of  experts  who  knew  the  testa- 
tor and  treated  him  cannot  be  said  to  be  entitled  to  greater 
weight,  as  matter  of  law,  than  experts  who  founded  their  opin- 
ions merely  upon  hypothetical  questions.1  And  evidence  by  ex- 
pert witnesses  who  have  devoted  their  time  and  attention  to  cases 
of  mental  derangement  is  of  much  greater  value  than  that  of  other 
persons  who  can  only  speak  from  observation  of  eutward  scenes 
and  appearances  ;3  and  next  to  them  great  respect  should  be  given 
to  the  evidence  of  witnesses  whose  intercourse  and  public  rela- 
tions with  men  enable  them  from  experience  and  observation  to 
form  an  opinion  of  men's  motives  from  their  speech  and  actions.4 
And  it  is  the  duty  of  the  jury  to  weigh  the  whole  evidence  and. 
decide  according  to  their  convictions  though  medical  witnesses 
are  of  a  different  opinion  ;5  and  an  instruction  to  that  effect  is 
not  subject  to  the  objection  that  it  informs  the  jury  that  the  testi- 
mony of  experts  is  not  entitled  to  greater  weight  than  that  of 
nonexperts.5  So,  the  opinion  of  unprejudiced  medical  witnesses 
that  a  person  is  insane  is  sufficient  to  overcome  the  presumption 
of  sanity,  though  it  is  supported  by  the  testimony  of  nonexpert 
witnesses  none  of  whom  had  had  extensive  opportunity  to  judge 
of  the  person's  mental  condition.7  And  a  statement  by  a  judge 
in  a  will  contest  that  he  relied  with  more  confidence  upon  the 
opinion  of  an  intelligent  attending  physician  than  he  did  upon 
the  subsequent  opinions  of  four  physicians  who  had  not  seen  the 
testator  during  his  illness,  but  based  their  opinion  as  to  his  sound- 
ness of  mind  upon  the  nature  of  the  disease,  is  not  reversible 

1  Harrison  v.  Rowan,  3  Wash..  C.  C.  580.  And  see  Whelpley  v.  Loder,  1 
Dem.  368. 

-  Bever  t.  Spangler,  93  Iowa,  576. 

3  Watson  t.  Anderson,  13  Ala.  202;  State  v.  Reidell,  9  Houst.  (Del.)  470; 
Hendrix  v.  Money,  1  Bnsh,  306;  Stackhouse  v.  Horton,  15  X.  J.  Eq.  202; 
Com.,  Helmbold,  v.  Kirkbride,  11  Phila.  127.  And  see  Keruble  v.  Clrurck, 
3  Hagg.  Eecl.  Rep.  273. 

4  Com.,  Helmbold,  v.  Kirkbride,  11  Phila,  427. 

s  Watson  t.  Anderson,  13  Ala.  202;  Stackhouse  v.  Horton,  15  X.  J.  Eq. 
202.  And  see  McAllister  v.  State,  17  Ala.  434.  42  Am.  Dec.  180;  People  v. 
Eiuley,  38  Mich.  482;  Doughty  v.  Doughty,  7  X.  J.  Eq.  643. 

6  Goodwin  t.  State,  96  Ind.  550. 

"  Com.,  Helmbold,  v.  Kirkbride,  11  Phila.  427. 
33 


594.  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

error.1  Nor  is  an  instruction,  that  the  testimony  of  medical  men 
of  large  experience  on  the  question  of  insanity  is  entitled  to  more 
weight  than  that  of  nonprofessional  me'h,  but  that  the  question 
of  weight  is  for  the  jury,  erroneous  where  the  medical  men  were 
not  mere  experts  whose  opinions  were  founded  on  the  facts  testi- 
fied to  by  other  witnesses,  but  persons  who  had  made  a  personal 
examination  for  the  very  purpose  of  ascertaining  as  to  the  per- 
son's mental  capacity.2 

Jurors  are  not  bound,  however,  to  give  more  weight  to  the 
testimony  of  medical  experts  as  to  insanity  than  that  of  nonex- 
perts who  state  facts  within  their  own  knowledge  ;  it  is  not  for 
the  court  to  pronounce,  as  matter  of  law,  which  of  the  two  classes 
shall  receive  the  greater  weight,3  and  an  instruction  to  give 
greater  weight  to  the  opinions  of  physicians  is  improper.4  Nor 
are  the  opinions  of  expert  witnesses  of  much,  if  any,  weight  where 
there  is  considerable  conflict  between  them  f  but  it  is  not  error 
for  the  court  in  such  case  to  refuse  to  charge  that  the  opinion  of 
those  who  have  not  had  practical  experience  should  be  disre- 
garded, where  nothing  is  said  to  the  jury  calculated  to  mislead 
them.6  Nor  should  the  jury  be  told  that  no  medical  expert  had 
testified,  and  that  the  finding  must  be  based  upon  the  testimony 
of  neighbors  and  intimate  friends,  where  physicians  did  testify,, 
though  their  opinions  were  conflicting.7 

So,  the  opinions  of  medical  experts  are  not  conclusive,  but 
must  be  weighed  as  any  other  evidence  ;s  but  they  are  to  be  con- 
sidered by  the  jury  in  connection  with  all  the  other  evidence, 
and  to  be  given  just  weight.9     The  opinion  of  an  expert  witness 

1  Kirkwood  v.  Gordon,  7  Bich.  L.  474,  62  Am.  Dec.  418. 

2  Blake  v.  Bourke,  74  Iowa,  519;  Meeker  v.  Meeker,  74  Iowa,  352. 
s  Sanders  v.  State,  94  Ind.  147. 

4  Carpenter  v.  Calvert,  83  HI.  62. 

6  Jamison  v.  Jamison,  3  Houst.  (Del.)  109. 

6  People  v.  Montgomery,  13  Abb.  Pr.  N.  S.  207. 

''  Vanvalkenburg  v.  Vanvalkenburg,  90  Ind.  434. 

8  McAllister  v.  State,  17  Ala.  434,  52  Am.  Dec.  180;  Williams  v.  State,  50 
Ark.  511;  Choice  v.  State,  31  Ga.  424;  Guetig  v.  State,  66  Ind.  94,  32  Am. 
Bep.  99;  Chandler  v.  Barrett,  21  La.  Ann.  58,  99  Am.  Dec.  701;  Francke 
v.  His  Wife,  29  La.  Ann.  302;  Be  Kiedaisch,  2  Connoly,  438;  Tomkins  v. 
Tomkins,  Bail.  L.  92;  Lovatt  v.  Tribe,  3  Fost.  &  F.  9. 

9  Guetig  v.  State,  66  Ind.  94,  32  Am.  Bep.  99;  Francke  v.  His  Wife,  29 
La.  Ann.  302. 


EVIDENCE    OF    INSANITY. 


595 


as  to  sanity  or  insanity  is  a  fact,  the  question  of  proper  weight  to 
be  given  it  falling  within  the  province  of  the  jury ;'  and  so  is  the 
question  as  to  whether  or  not  the  facts  upon  which  the  opinion 
of  an  expert  is  based  are  established.2  And  where  the  opinion 
of  an  expert  has  been  admitted,  and  is  based  upon  facts  hypothet- 
ically  stated  which  vary  somewhat  from  tjie  facts  proved  on  the 
trial,  a  charge  that  the  opinion  is  entitled  to  but  little  weight  is 
properly  refused.3  The  jury  should  be  left  at  liberty  to  apply 
the  same  general  rules  to  the  testimony  of  experts  that  are  appli- 
cable to  the  testimony  of  other  witnesses  in  estimating  its  value,4 
and  a  verdict  against  the  validity  of  a  will  will  not  be  disturbed, 
though  it  was  rational  in  its  provisions  and  was  written  and 
attested  by  a  physician  without  interest  who  testified  in  favor  of 
testamentary  capacity,  where  the  other  attesting  witness  testified 
that  the  testator  was  incompetent  by  reason  of  his  physical  and 
mental  condition,  and  other  witnesses,  including  another  attend- 
ing physician,  testified  against  testamentary  capacity.5  And  tes- 
tamentary capacity  may  be  held  to  be  sufficient  though  a  large 
number  of  witnesses  testify  that  the  testator  could  not  compre- 
hend ordinary  business  transactions,  and  though  he  disinherited 
most  of  his  relatives,  where  a  larger  number,  including  his  pastor 
and  family  physician  and  the  subscribing  witnesses,  give  evidence 
tending  to  prove  competency.6 

So,  an  instruction  that  the  opinions  of  medical  witnesses  should 
be  received  with  caution,  and  are  entitled  to  but  little  weight 
unless  sustained  by  reasons  and  facts  that  admit  of  no  miscon- 
struction, is  objectionable  as  a  comment  upon  the  sufficiency  and 
weight  of  evidence ; 7  and  so  is  one  assigning  more  weight  to  the 
testimony  of  nurses  and  attendants  than  to  the  opinions  of  sub- 
scribing witnesses  ; e  or  one  that  expert  witnesses  speaking  merely 

1  Gunter  v.  State,  83  Ala.  96;  Kempsey  v.  McGinniss,  21  Mich.  123; 
Maynard  v.  Vinton,  59  Mich.  139,  60  Am.  Eep.  276;  Blake  v.  Bourke,  74 
Iowa,  519;  Meeker  v.  Meeker,  74  Iowa,  352. 

2  First  Nat.  Bank  v.  Wireloack,  106  Pa.  37. 

3  Gunter  v.  State,  83  Ala.  96. 

4  Cuneo  v.  Bessoni,  63  Ind.  521. 

6  Sydner  v.  Cunningham,  13  Ky.  L.  Bep.  24. 
6  Forman  v.  Smith,  7  Lans.  413. 
1  State  v.  Hundley,  46  Mo.  414. 
8  Brown  v.  Biggin,  94  Bl.  560. 


596  MEDICAL   JURISPRUDENCE    OF   INSANITY. 

as  to  matters  of  opinion  based  upon  hypothetical  questions  are 
entitled  to  more  credit  than  witnesses  who  had  knowledge  of 
facts  gathered  from  personal  observation  and  who  based  their 
opinions  on  actual  facts.1  And  an  instruction  that  the  testimony 
of  experts  is  usually  of  very  little  value,  and  that  their  opinions 
are  not  so  highly  regarded  as  formerly,  is  erroneous,2  and  the 
jury  should  not  be  told  that  medical  witnesses  are  to  be  regarded 
as  the  lowest  order  of  witnesses  where  the  question  was  as  to 
whether  the  person  in  question  was  afflicted  with  a  certain  form 
of  epilepsy,  and  as  to  the  particular  characteristics  of  that  par- 
ticular form  of  it.3  l^or  is  it  proper  for  the  court,  in  the  presence 
of  the  jury,  to  question  whether  they  will  realize  much,  if  any, 
valuable  aid  from  experts  in  coming  to  a  correct  conclusion  on 
the  question  of  mental  capacity,  where  evidence  has  been  given 
of  their  observation,  experience,  and  skill  sufficient  to  enable 
them  to  form  intelligent  opinions.4  A  remark  by  the  judge  in 
charging  the  jury  in  a  criminal  prosecution  in  which  experts 
have  been  examined,  however,  that  in  his  experience  and  obser- 
vation doctors  can  be  obtained  to  swear  on  both  sides  of  any 
question,  is  not  objectionable  as  adding  the  testimony  derived 
from  the  experience  of  the  judge.5  And  an  instruction  that  the 
evidence  of  an  expert  is  of  little  value  is  not  reversible  error  as 
against  the  plaintiff  in  a  will  contest  where  he  was  called  by  and 
testified  strongly  in  favor  of  the  proponent.6 

§  18.  Weight — nonexpert  opinions. 
The  weight  to  be  given  the  opinions  of  nonexpert  witnesses  as 
to  the  sanity  of  a  person  depends  upon  a  consideration  of  all  the 
circumstances  under  which  they  were  formed  ;6  and  upon  the  knowl- 
edge of  the  witnesses  and  their  opportunities  for  observation ; 8 

1  Goodwin  v.  State,  96  Ind.  550. 
8  Eggers  v.  Eggers,  57  Ind.  461. 
3  State  v.  Townsend,  66  Iowa,  741. 
*  Pannell  v.  Com.  86  Pa.  260. 

5  People  v.  Webster,  59  Hun,  398. 

6  Bundy  v.  McKnight,  48  Ind.  502. 
1  Moore  v.  Moore,  67  Mo.  192. 

8  Armstrong  v.  State,  30  Fla.  170,  17  L.  K.  A.  484;  Beaubien  v.  Cicotte, 
12  Mich.  459;  Wood  v.  State,  58  Miss.  741;  Sharp  v.  Kansas  City  Cable  B.  Co. 


EVIDENCE   OF    INSANITY. 


597 


and  upon  the  incidents  actually  observed;1  and  upon  the  intelli- 
gence and  honesty  of  the  witnesses;2  and  upon  their  freedom 
from  interest  and  bias.3  Thus,  the  opinions  of  witnesses  who 
were  present  at  the  execution  of  the  will  are  entitled  to  particu- 
lar weight, — especially  where  they  were  attesting  witnesses.4  And 
evidence  of  the  neighbors  of  a  party  who  were  of  sound  judg- 
ment and  fair  powers  of  observation,  and  who  had  known  him 
long  and  well,  and  had  occasion  to  observe  and  test  the  vigor  of 
his  mental  faculties,  and  can  give  the  facts  upon  which  their 
impressions  and  opinions  are  based,  is  ordinarily  the  most  reliable 
on  the  question  of  senile  dementia.5  So,  greater  reliance  is  to  be 
placed  upon  the  testimony  of  an  impartial  and  respectable  lawyer 
in  regard  to  the  due  execution  of  a  will  prepared  by  him  than 
upon  that  of  -a  nonprofessional  witness.8  But  the  testimony  of 
the  attorney  who  drew  a  will,  tending  to  show  that  the  testator 
knew  what  he  was  about,  cannot  be  said,  as  matter  of  law,  to  be 
controlling  where  there  is  evidence  of  great  age,  and  many  cir- 
cumstances indicating  an  enfeebled  mental  condition.7  And  a  will 
will  not  be  set  aside  upon  the  testimony  of  a  number  of  witnesses, 
all  of  whom  were  related  to  the  testator,  as  to  his  unsoundness  of 
mind,  as  against  that  of  the  three  witnesses  to  the  will  who  were 
not  interested  and  were  not  connected  with  his  family,  and  were 
apparently  free  from  prejudice,  and  had  an  abundant  opportunity 
to  form  a  judgment  as  to  his  condition,  that  he  was  of  sound 
mind.8  And  letters  written  by  a  testator  at  about  the  time  he 
made  his  will,  evidencing  a  sound  discriminating  mind,  are  more 

114  Mo.  94;  Clifton  v.  Clifton,  47  N.  J.  Eq.  227;  Culver  v.  Haslam,  7  Barb. 
314;  State  v.  Kalb,  2  Ohio  Leg.  News,  364;  Harris  v.  State,  18  Tex.  App. 
287;  Burton  v.  Scott,  3  Band.  (Va.)  399. 

1  Sharp  v.  Kansas  City  Cable  B.  Co.  114  Mo.  94;  Sharp  v.  Merriman 
(Mich.)  2  Det.  L.  N.  890. 

2  Clifton  v.  Clifton,  47  N.  J.  Eq.  227. 

3  Culver  v.  Haslam,  7  Barb.  314. 

4  Kerr  v.  Lunsford,  31  W.  Va.  680,  2  L.  B.  A.  668;  Nicholas  v.  Kershner, 
20  W.  Va.  251. 

5  Hiett  v.  Shull,  36  W.  Va.  563. 

6  Jueke  v.  Adam,  1  Kedf.  454. 

1  Petrie  v.  Petrie,  25  N.  Y.  S.  B.  309. 
8  Sutton  v.  Morgan,  30  N.  J.  Eq.  629. 


598 


MEDICAL    JURISPRUDENCE    OF    INSANITY. 


reliable  than  speculations  and  opinions  of  witnesses  as  to  testa- 
mentary incapacity.1  So,  knowledge  of  the  habits  of  the  insured 
with  reference  to  intemperance,  asserted  by  witnesses  in  an  action 
upon  an  insurance  policy,  who  were  not  intimate  with  him  and 
saw  him  only  occasionally,  amounts  to  no  more  than  the  assertion 
of  an  opinion,  and  will  not  be  entitled  to  equal  weight  with  less 
positive  testimony  of  other  witnesses  founded  upon  a  more  exten- 
sive acquaintance.2  No  rule  can  be  laid  down,  however,  declaring 
what  opportunities  to  observe  are  necessary  to  entitle  a  witness  to 
give  an  opinion  as  to  mental  capacity.3  And  it  cannot  be  said,  as 
a  matter  of  law,  that  witnesses  who  had  less  acquaintance  with 
the  person  whose  sanity  is  questioned  and  less  opportunities  to 
observe  may  not  be  as  reliable  witnesses  as  others  who  have 
special  training,  experience,  or  habits  of  close  observation.4  And 
an  instruction  upon  the  question  of  insanity,  that  where  witnesses 
are  of  equal  capacity  the  opinions  of  those  who  have  better 
means  of  knowledge  are  ordinarily  of  greater  weight  than  the 
opinions  of  those  who  have  less  means  of  knowledge,  is  objection- 
able as  an  interference  with  the  province  of  the  jury  to  determine 
the  weight  of  evidence.6  And  questions  asked  a  witness  on  cross- 
examination  in  a  will  contest  as  to  whether  he  thought  the  testa- 
tor had  sufficient  mind  at  the  time  of  making  his  will  to  give  the 
directions  required  therefor,  are  not  competent  for  the  purpose 
of  ascertaining  the  degree  of  intelligence  possessed  by  the  witness 
in  order  to  determine  what  reliance  should  be  placed  on  his 
evidence.6 

So,  the  opinions  of  witnesses  as  to  mental  capacity  are  to  be 
weighed  by  the  facts  upon  which  they  are  based,  such  facts  being 
of  more  importance  than  the  opinions.7     And  all  of  the  facts 

1  Harper  v.  Harper,  1  Thomp.  &  C.  351. 

2  Knickerbocker  L.  Ins.  Co.  v.  Foley,  105  U.  S.  350,  26  L.  eel.  1055. 

3  Beaubien  v.  Cicotte,  12  Mich.  459. 

4  Cline  v.  Lindsey,  110  Ind.  337. 

6  Fulwider  v.  Ingels,  87  Ind.  414;  Cline  v.  Lindsey,  110  Ind.  337;  Dur- 
ham v.  Smith,  120  Ind.  463. 

6  Ee  McCarthy,  55  Hun,  7. 

1  Clark  v.  Sawyer,  3  Sandf.  Ch.  351;  Eush  v.  Megee,  36  Ind.  69; 
M'Daniel's  Will,  2  J.  J.  Marsh.  331;  Stackhouse  v.  Horton,  15  N.  J.  Eq. 
202;  Eloi  v.  Eloi,  36  La.  Ann.  563;  Wilcox  v.  State,  94  Tenn.  106;  Kinle- 
rside  v.  Harrison,  2  Phillim.  Eccl.  Eep.  449. 


EVIDENCE    OF   INSANITY.  599 

connected  with  the  person's  conduct,  language,  and  appearance 
at  and  preceding  the  time  in  question  are  to  be  considered  in 
testing  the  value  of  the  opinions  expressed  thereon.1  And  the 
opinions  of  witnesses  as  to  want  of  testamentary  capacity  are 
entitled  to  but  little  weight  as  against  proof  of  facts  evincing 
sufficient  testamentary  capacity ; "  and  are  entitled  to  little  or  no 
regard  unless  supported  by  good  reasons  founded  on  facts  which 
warrant  them.3  So,  opinions  based  upon  facts  too  weak  and 
inconclusive  to  warrant  them  are  insufficient  to  justify  the  sub- 
mission of  the  issue  of  testamentary  capacity  to  the  jury.4  And 
the  opinion  of  a  witness  in  a  will  contest  as  to  whether  the  testa- 
tor had  capacity  to  make  the  will  in  question,  though  perhaps 
admissible,  should  be  carefully  guarded  by  the  judge  in  his 
instructions  where  it  is  proved  that  the  witness  based  it  upon  his 
knowledge  that  the  testator  was  subject  to  delusions  which  had 
no  effect  upon  such  capacity.5  Nor  is  an  instruction  in  a  criminal 
prosecution,  that  conduct,  language,  and  appearance  of  the  accused 
should  be  considered  for  the  double  purpose  of  testing  the  value 
of  the  opinions  of  witnesses  based  upon  such  facts  and  of  deter- 
mining the  fact  of  insanity  independent  of  such  opinions,  subject 
to  the  objection  that  it  tells  the  jury  that  if  they  find  the  accused 
insane  they  must  do  so  from  facts  independent  of  those  used 
as  a  basis  for  opinions,  where  they  are  also  told  that  weight  and 
credit  should  be  given  the  opinions.6  While  the  admissibility  of 
the  opinions  of  nonexpert  witnesses  as  to  sanity  or  insanity  is  a 
question  for  the  court,  however,  their  weight  and  the  effect  which 
shall  be  given  them  is  one  exclusively  for  the  jury,7  to  be  deter- 

1  State  v.  Mewherter,  46  Iowa,  88. 

2  Carpenter  v.  Calvert,  83  111.  62;  Doughty  v.  Doughty,  7  N.  J.  Eq.  643. 

3  Kinne  v.  Kinne,  9  Conn.  102,  21  Am.  Dec.  732;  Jamison  v.  Jamison,  3 
Houst.  (Del.)  108;  Jones  v.  Perkins,  5  B.  Mon.  222;  Chase  v.  Winans,  59 
Md.  475;  Sloan  v.  Maxwell,  3  N.  J.  Eq.  563;  Lowe  v.  Williamson,  2  N.  J. 
Eq.  82;  Clifton  v.  Clifton,  47  N.  J.  Eq.  227;  Nexsen  v.  Nexsen,  2  Keyes, 
232;  Young  v.  Barner,  27  Gratt.  96;  Kerr  v.  Lunsford,  31  W.  Va.  680,  2 
X..  B.  A.  668;  Jarrett  v.  Jarrett,  11  W.  Va.  584. 

4  Green's  Estate,  140  Pa.  137;  Harrison  v.  Bowan,  3  Wash.  C.  C.  580. 

6  Bice  v.  Bice,  53  Mich.  432.  And  see  also  Charter  Oak  L.  Ins.  Co.  v. 
Bodel,  95  U.  S.  235,  24  L.  ed.  433. 

6  State  v.  Jones,  64  Iowa,  356. 

7  Colee  v.  State,  75  Ind.  513;  Petrie  v.  Petrie,  25  N.  Y.  S.  B.  309;  New- 


600  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

mined  upon  a  consideration  of  the  facts  testified  to  by  them  upon 
"which  such  opinions  are  based.1  And  the  reasons  of  .witnesses 
for  their  opinions  on  the  question  of  mental  soundness  are  also 
for  the  consideration  of  the  jury,  and  not  of  the  court.3  As  is 
also  the  question  whether  the  means  of  information,  or  the  facts 
proved,  or  the  conclusions  drawn  by  a  witness  as  to  sanity  or  in- 
sanity are  sufficient  to  base  their  conclusion  upon.3  And  an 
instruction  that  the  testimony  of  witnesses  who  depose  to  sanity 
is  to  be  preferred  to  the  testimony  of  those  to  the  contrary  is 
properly  refused."  Opinion  evidence  may  be  rebutted  or  ex- 
plained in  the  same  way  as  any  other  legal  and  competent 
testimony.5 

"VT.  Attesting  "Witnesses. 

The  attesting  witnesses  to  a  will  are  placed  around  the  testator 
at  the  time  of  its  execution  for  the  special  purpose  of  ascertaining 
and  judging  of  his  capacity ; 6  and  as  a  general  rule  they  are  per- 
mitted to  testify  as  to  the  opinion  they  formed  at  the  time  as  to 
the  condition  of  his  mind,  whether  sound  or  unsound,7  without  a 

hardt  v.  Yundt,  132  Pa.  324;  Commonwealth  Title  Ins.  &  T.  Co.  v.  Gray, 
150  Pa.  255;  Elcessor  v.  Elcessor,  146  Pa.  359;  Titlow  v.  Titlow,  54  Pa.  216> 
93  Am.  Dec.  691;  State  v.  Hayden,  51  Yt.  296. 

1  State  v.  Hayden,  51  Yt.  296;  Titlow  v.  Titlow,  54  Pa.  216,  93  Am.  Dec. 
691;  Taylor  v.  Com.  109  Pa.  262;  Foster  v.  Dickerson,  64  Yt.  233;  Wood  v. 
State,  58  Miss.  741;  Wise  v.  Eoote,  81  Ky.  10. 

2  Gray  v.  Obear,  59  Ga.  675. 

3  McClackey  v.  State,  5  Tex.  App.  320;  Nexsen  v.  Nexsen,  2  Keyes,  232. 

4  Newhardt  v.  Yundt,  132  Pa.  324. 

5  United  States  v.  Holmes,  1  Cliff.  98. 

6  Ethridge  v.  Bennett,  9  Houst.  (Del.)  295;  McDaniel  v.  Crosby,  19  Ark. 
533;  Needham  v.  Ide,  5  Pick.  510;  Poole  v.  Richardson,  3  Mass.  330; 
Young  v.  Barner,  27  Gratt.  96. 

7  Walker  v.  Walker,  34  Ala.  469;  Ethridge  v.  Bennett,  9  Houst.  (DeL) 
295;  Lodge  v.  Lodge,  2  Houst.  (Del.)  418;  Kelly  v.  McGuire,  15  Ark.  556; 
McDaniel  v.  Crosby,  19  Ark.  533;  CaU  v.  Byram,  39  Ind.  499;  Be  Harper's 
WiU,  4  Bibb.  244;  Bobinson  v.  Adams,  62  Me.  369,  16  Am.  Bep.  473;  Mar- 
tin v.  Perkins,  56  Miss.  204;  Needham  v.  Ide,  5  Pick.  510;  Poole  v.  Bich- 
ardson,  3  Mass.  330;  Williams  v.  Spencer,  150  Mass.  346,  5  L.  E.  A.  790; 
Hamblett  v.  Hamblett,  6  N.  H.  333;  Holcomb  v.  Holcomb,  95  N.  Y.  316; 
Clapp  v.  Eullerton,  34  N.  Y.  190,  90  Am.  Dec.  681;  Dewitt  v.  Barley,  9 
X.  Y.  371;  Crowell  v.  Kirk,  3  Dev.  L.  355;  Pidcock  v.  Potter,  68  Pa.  342, 
8  Am.  Bep.  181. 


EVIDENCE    OF    INSANITY. 


601 


previous  statement  of  the  facts  and  circumstances  upon  which 
such  opinion  is  based,1  and  without  assigning  cause  or  reason 
therefor,2  the  rule  that  the  opinions  of  nonexpert  witnesses  must 
be  based  on  facts  to  be  entitled  to  weight  not  applying  to  the  sub- 
scribing witnesses  to  a  will ; 3  though  either  party  may  examine 
the  witnesses  as  to  what  transpired  at  the  time  they  witnessed  the 
instrument.4  And  the  subscribing  witnesses  may  be  cross-exam- 
ined as  to  the  condition  of  the  testator's  mind  when  the  will  was 
executed,  such  condition  being  a  part  of  the  res  gestae."  The  wit- 
ness is  not  required  to  have  any  knowledge  other  than  that 
derived  from  the  conduct  of  the  testator  at  the  time.6  So,  a 
request  to  an  attesting  witness  to  give  his  opinion  as  to  the  testa- 
trix's capacity  to  make  a  disposition  of  her  property  is  not  subject 
to  the  objection  that  he  has  not  seen  her  sufficiently  to  be  able  to 
judge.7  And  permitting  the  contestants  of  a  will  to  cross- 
examine  the  subscribing  witnesses  on  the  question  of  soundness 
of  mind  before  they  have  opened  their  case  is  not  a  departure 
from  the  rule  of  evidence  that  the  defendant,  who  had  not  opened 
his  case,  will  not  be  allowed  to  introduce  it  to  the  jury  by  cross- 
examining  the  adverse  party.8  The  opinion  given  must  be  the 
one  entertained  when  the  will  was  made,  and  not  one  subse- 
quently formed.9 

Upon  the  other  hand,  however,  it  has  been  held  that  the 
opinions  of  witnesses  to  a  will  as  to  testamentary  capacity  are 
competent  when  the  facts  and  circumstances  upon  which  such 
opinions  are  founded  are  disclosed,10  and  that  the  opinion  of  a 

1  Logan  v.  McGinnis,  12  Pa.  27;  Titlow  v.  Titlow,  54  Pa.  216,  93  Am. 
Dec.  691;  Potts  v.  House,  6  Ga.  321;  Robinson  v.  Adams,  62  Me.  369,  16 
Am.  Eep.  473;  Williams  v.  Lee,  47  Md.  321;  Van  Huss  v.  Kainbolt,  2 
Coldw.  139. 

2  Gibson  v.  Gibson,  9  Yerg.  329;  Puryear  v.  Reese,  6  Coldw.  21. 

3  Young  v.  Barner,  27  Gratt.  96. 

4  Robinson  v.  Adams,  62  Me.  369,  16  Am.  Rep.  473. 

6  Egbert  v.  Egbert,  78  Pa.  326;  Re  Coleman,  111  N.  Y.  220. 
6  Re  Coleman,  111  N.  Y.  220. 
1  Foster  v.  Dickerson,  64  Vt.  233. 
s  Egbert  v.  Egbert,  78  Pa.  326. 

9  Williams  v.  Spencer,  150  Mass.  346,  5  L.  R.  A.  790. 
»o  Abraham  v.  Wilkins,   17  Ark.   292;  Kelly  v.    McGuire,    15  Ark.    555; 
Cilley  v.  Cilley,  34  Me.  162. 


602  MEDICAL    JUBISPBUDENCE    OF    INSANITY. 

subscribing  witness  as  to  the  sanity  of  the  testator  is  not  admis- 
sible in  evidence  where  he  testifies  to  no  facts  with  relation  to  it.1 
And  that  refusal  to  permit  a  witness  to  state  whether  there  was 
anything  in  the  testator's  manners  or  appearance  different  from 
what  he  had  seen  for  the  year  past  is  not  erroneous  as  in  conflict 
with  the  rule  that  a  subscribing  witness  can  give  his  opinion  gen- 
erally as  to  soundness  of  mind  where  he  did  not  describe  the 
manner  and  appearance  of  the  testator,  but  merely  stated  the 
conversations  had  with  him  and  what  was  done.2  So,  it  has  been 
held  that  a  nonexpert  witness  who  is  the  subscribing  witness  to  a 
deed,  offered  to  prove  the  mental  capacity  of  the  grantor,  is 
within  the  same  principle  which  allows  a  subscribing  witness  to  a 
will  to  give  his  opinion  upon  the  question  of  sanity  or  insanity.8 
But  the  opposite  rule  that  deeds  are  good  without  subscribing 
witnesses,  and  that  the  rule,  allowing  subscribing  witnesses  to 
wills  to  testify  as  to  their  opinions  of  the  testator's  capacity  does 
not  apply  to  the  subscribing  witnesses  to  a  deed  who  must  testify 
to  facts  only  on  the  question  of  the  sanity  or  capacity  of  the 
grantor,  has  been  adopted  to  some  extent.4  But  where  the 
attesting  witnesses  to  a  deed  are  dead,  it  will  be  assumed  that 
they  would  have  sworn  to  the  sanity  of  the  grantor.6  And  a 
deed  attested  by  a  witness  who  afterwards  became  blind  may  be 
read  in  evidence  on  proof  of  the  witness's  handwriting,  without 
calling  him.6  But  a  subscribing  witness  to  a  deed  must  be 
called  in  an  action  thereon  where  non  est  factum  is  pleaded, 
though  he  has  become  blind ;  it  is  not  enough  to  prove  his  hand- 
writing.7 So,  as  a  general  rule  declarations  of  a  deceased  attest- 
ing witness  to  a  will,  made  after  his  attestation,  to  the  effect  that 
the  testator  was  of  unsound  mind,  are  not  admissible,  as  by  attest- 
ing the  witness  asserts  in  legal  effect  the  mental  capacity  of  the 
grantor.6     And  the  declarations  of  one  of  three  subscribing  wit- 

1  Kenworthy  v.  Williams,  5  Ind.  375;  Dickinson  v.  Dickinson,  61  Pa.  401. 

-  Petrie  v.  Petrie,  25  H.  T.  S.  K.  309. 
1  Brand  v.  Brand,  39  How.  Pr.  196. 

i  Dean  v.  Fuller,  40  Pa.  474. 

-  T :  wart  v.  Sellars,  5  Dow,  P.  C.  231. 
•  Pedler  v.  Paige,  1  Moody  &  E.  258. 

'■  Crank  v.  Frith,  2  Moody  &  B.  262,  9  Car.  &  P.  197. 

-  Board tii  an  v.  Woodman,  47  N.  H.  120;  Stephenson  v.  Stephenson,  62 


EVIDENCE    OF    INSANITY. 


603 


nesses  to  a  will  that  the  testator  was  insane  are  not  admissible  to 
defeat  the  will  where  he  was  absent  from  the  state  and  no  proof 
of  handwriting  had  been  given.1  Kor  can  they  be  given  after 
his  death  to  impeach  the  evidence  given  by  him  in  probate  court, 
where  the  testator  had  not  been  interdicted,  and  the  fact  that  he 
was  subsequently  interdicted  is  of  no  account.2  Xor  can  a  sub- 
scribing witness  be  asked  if  he  would  have  subscribed  the  will  if 
he  had  known  the  contents.3  And  while  evidence  of  another  wit- 
ness, that  he  heard  the  subscribing  witness  making  inconsistent 
declarations  as  to  the  sanity  of  the  testatrix,  has  been  held  admis- 
sible as  discrediting  the  subscribing  witness,4  it  is  not  admissible 
as  primary  evidence,  as  it  would  be  mere  hearsay.5 

So,  a  subscribing  witness  to  a  will  cannot  be  asked  if  he  thought 
the  testator  had  mind  sufficient  at  the  time  he  executed  his  will 
to  give  specific  directions  with  reference  to  the  disposition  of  his 
property,  such  inquiry  embracing  the  very  question  covered  by 
the  issue.6  And  the  opinion  of  such  a  witness  as  to  the  strength 
of  mind  required  to  comprehend  a  clause  creating  charitable 
trusts  is  not  admissible  in  a  will  contest.7  Xor  is  evidence  not 
limited  to  the  inquiry  as  to  the  opinion  of  a  witness  at  the  time 
of  the  execution  of  the  will  rendered  competent  by  the  fact  that 
the  witness  was  a  subscribing  witness.3  But  an  answer  of  a  sub- 
scribing witness  as  to  his  belief  of  the  testator's  mental  capacity 
will  not  be  suppressed  where  it  appears  that  the  word  "belief  "  was 
used  as  synonymous  with  opinion.9  And  he  need  not  use  the 
statutory  formula  "  sound  mind  and  memory"  in  stating  his  be- 
lief as  to  testamentary  capacity ;  it  is  sufficient  if  he  states  it  in 
equivalent  words.10    And  under  the  Illinois  statute  the  testimony 

Icma,  163;  Sewall  v.  Bobbins,  139  Mass.  164;  Baxter  v.  Abbott,  7  Gray,  71; 
Harden  v.  Hays,  9  Pa,  151;  Sellars  v.  Sellars,  2  Heisk.  430;  Cheatham  v. 
Hatcher,  30  Gratt,  56. 

1  Fox  v.  Evans,  3  Teates,  506. 

'■  Bimyan  v.  Price,  15  Ohio  St.  1,  86  Am.  Dec.  459. 

3  Spence  v.  Spence,  4  "Watts,  165. 

4  Colvin  v.  Warf  ord,  20  Md.  357. 

5  Stirling  v.  Stirling,  64  Md.  138. 

6  Be  McCarthy,  55  Him,  7. 

'  Melanefy  v.  Morrison,  152  Mass.  473. 
f  Be  McCarthy,  55  Hun,  7. 

9  Hughes  v.  Hughes,  31  Ala.  519. 

10  Bice  v.  Hall,  120  HI.  597. 


604:  MEDICAL    JUBISPRUDENCE    OF   INSA2JXTY. 

of  the  subscribing  witnesses  to  a  will  only  is  admissible  upon  the 
question  of  insanity.1  And  where  one  subscribing  witness  testi- 
fies to  sanity  and  the  other  to  insanity  the  evidence  of  other  wit- 
nesses is  not  admissible  to  establish  the  will.3  So,  evidence  of 
previous  inconsistent  declarations  of  an  attesting  witness  is  admis- 
sible where  he  has  testified  that  the  testator  did  not  have  testa- 
mentary capacity  and  the  proponent  has  examined  him  only  so 
far  as  the  law  made  it  his  imperative  duty.3  And  it  has  been 
held  that  while  the  fact  that  an  attesting  witness  has  testified  to 
the  execution  of  a  will  affords  prima  facie  evidence  that  he  con- 
sidered the  testator  sane  it  does  not  prevent  him  from  testifying 
as  to  his  opinion  on  the  subject  of  his  mental  condition.4  And 
that  a  will  should  be  probated  upon  satisfactory  evidence  of  tes- 
tamentary capacity,  though  the  subscribing  witnesses  may  testify 
against  capacity.' 

The  opinions  of  the  attesting  witnesses  to  a  will,  and  the  facts 
stated  by  them  as  occurring  at  the  time  of  its  execution,  are  enti- 
tled to  great  weight,6  But  the  opinion  of  a  witness  who  is  a 
stranger  to  the  testator,  and  who  sees  and  hears  nothing  except 
what  is  necessary  to  enable  him  to  attest,  should  be  given  less 
weight  than  that  of  a  neighbor  and  familiar  acquaintance  of  a 
testator ;  and  neither  is  of  any  weight  except  as  proved  to  be  cor- 
rect from  facts  which  justify  and  warrant  it,7  And  a  will  which 
is  attested  while  the  testator  is  in  a  state  of  insensibility  is  not 
attested  in  his  presence  within  the  meaning  of  a  statute  requiring 
such  attestation,  though  he  was  corporally  present.8     So,  a  statu- 

1  Bice  v.  Hall,  120  HI.  597. 

3  Weld  v.  Sweeney,  85  HI.  50. 

z  Thornton  v.  Thornton,  39  Yt.  122. 

*  Williams  v.  Lee,  47  McL  321. 

5  Martin  v.  Perkins,  56  Miss.  204.  And  see  Griffin  v.  Griffin,  E.  M. 
Charlt.  (Ga.)  217;  Spencer  v.  Moore,  4  Call  (Ya.)  423;  Butler  v.  Benson,  1 
Barb.  526;  Peebles  v.  Case,  2  Bradf.  226;  Jauncey  v.  Thorne,  2  Barb.  Ch, 
40;  Le  Breton  v.  Fletcher,  2  Hagg.  Eccl.  Bep.  558;  Lowe  v.  Joliffe,  1 W.  Bl. 
365;  Sechrest  v.  Edwards,  4  Met.  (Ky.)  163;  Howard's  Will,  5  T.  B.  Mon. 
199;  Perkins  t.  Perkins,  39  X.  H.  163. 

':  Turner  v.  Cheesman,  15  X.  J.  Eq.  243.  And  see  Allison  v.  Allison,  7 
Dana,  91;  Brock  v.  Luckett,  4  How.  (Miss.)  459;  Eemble  v.  Church,  3 
Hagg.  Eccl.  Bep.  273. 

:  Garrison  v.  Garrison,  15  X.  J.  Eq.  266. 

B  Eight  t.  Price,  1  Dougl.  241. 


EVIDENCE    OF    INSANITY.  605 

tory  requirement  that  a  will  shall  be  attested  by  at  least  two 
credible  witnesses  requires  such  attestation  by  persons  who  are 
not  disqualified  by  mental  imbecility  or  otherwise  from  giving 
testimony  in  a  court  of  justice.1  But  a  subscribing  witness  to  a 
codicil  is  not  competent  on  the  question  of  insanity  under  the 
Tennessee  rule  wh-ere  at  the  time  of  making:  it  he  was  a  legatee 
under  the  original  will.2 


VII.  Books. 

The  doctrine  has  been  stated  that  standard  medical  works  on 
insanity  and  scientific  works  on  medical  jurisprudence  are  ad- 
missible in  evidence,  and  may  be  read  to  the  jury  by  counsel 
upon  the  question  of  sanity  or  insanity  ;3  and  that  counsel  may 
read  to  the  jury  a  case  from  regular  law  reports  in  which  the 
question  of  insanity  is  discussed,  and  is  not  confined  to  the  opin- 
ion of  the  court,  but  may  read  the  facts  of  the  case  and  the  com- 
ments thereon.4  But  scientific  works  on  medical  jurisprudence 
have  not  the  weight  of  legal  authorities  except  so  far  as  the  views 
expressed  in  them  have  been  recognized  and  sustained  by  judicial 
ruling.6  And  it  has  been  held  that  cases  decided  in  other  states 
or  in  England  should  not  be  allowed  to  be  read  to  the  jury  from 
books  for  the  purpose  of  showing  that  the  facts  set  forth  in  such 
case  were  not  inconsistent  with  the  soundness  of  mind  neces- 
sary to  the  performance  of  the  act  in  question.6 

But  the  general  rule  would  seem  to  be  that  though  a  resort  to 
medical  science  for  many  purposes  is  highly  advantageous  in 
judicial  proceedings,  medical  writers  possess  no  power  to  prescribe 
the  rule  which  limits  the  extent  of  human  responsibility  for 
crime  ;7  and  that  books  on  the  subject  of  insanity  written  by  phy- 
sicians or  lawyers,  though  of  established  reputation,  are  not  ad- 

1  Fuller  v.  FuUer,  83  Ky.  345. 

2  Gass  v.  Gass,  3  Humph.  278. 

3  State  v.  Hoyt,  46  Conn.  330;  State  v.  West,  Houst.  Crim.  Eep.  (Del.) 
371;  State  v.  Coleman,  20  S.  C.  441. 

4  State  v.  Hoyt,  46  Conn.  330. 

5  State  v.  West,  Houst.  Crim.  Eep.  (Del.)  371. 

6  Baldwin's  Appeal,  44  Conn.  37. 

1  Com.  v.  Haggerty,  4  Clark  (Pa.)  187. 


606  MEDICAL    JUKISPBUDENCE    OF    INSANITY. 

missible  in  evidence,  and  cannot  be  read  to  the  jury.1  Nor  can 
statistics  of  the  increase  of  insanity  as  stated  by  the  court  or 
counsel  in  another  state  be  read  ;*  and  counsel  has  no  right  in  his 
address  to  the  jury  to  quote  the  opinions  of  medical  men  as  given 
in  their  works.3  But  while  counsel  cannot  be  permitted  to  read 
to  an  expert  witness  on  the  question  of  sanity  what  has  been  said 
by  an  eminent  authority  and  ask  him  whether  he  concurred  in 
his  views,  he  may  use  such  statements  to  assist  him  in  framing 
questions  for  the  witness  as  to  his  own  opinion;4  and  although 
scientific  books  cannot  be  read  for  the  purpose  of  proving  the 
facts  or  establishing  the  doctrine  stated  in  them  it  is  proper  to 
call  the  attention  of  expert  witnesses,  upon  cross-examination,  to 
books  upon  the  subject  of  insanity,  and  ask  them  whether  or  not 
others  whom  they  admit  to  be  authority  do  not  express  opinions 
different  from  that  which  was  given  by  them  upon  the  stand,  the 
extent  to  which  such  examination  may  go  resting  largely  in  the 
discretion  of  the  court.5 

1  Com.  v.  Wilson,  1  Gray,  339;  Davis  v.  State,  38  Md.  15;  Fraser  v.  Jen- 
nison,  12  Mich.  206;  Hall  v.  Com.  (Pa.)  11  Cent.  183;  Collier  v.  Simpson, 
5  Car.  &  P.  71;  Cocks  v.  Purday,  2  Car.  &  K.  270. 

-  Com.  v.  Wilson,  1  Gray,  339. 

3  Queen  v.  Crouch,  1  Cox,  C.  C.  91. 

4  State  t.  Coleman,  20  S.  C.  111. 

6  Egan  v.  Dry  Dock,  E.  B.  &  B.  B,  Co.  12  App.  Div.  556. 


CHAPTER  XL 

WITNESSES  AND  JURORS. 

I.  Competency  op  witnesses. 
II.  Competency  op  jukors. 

I.  Competency  of  witnesses. 
The  rule  as  generally  stated  is  that  persons  who  are  non  com- 
pos mentis  are  not  competent  witnesses.  The  reason  for  not  admit- 
ting the  testimony  of  persons  non  compos  mentis,  however,  is  that 
their  malady  involves  snch  a  want  or  impairment  of  the  faculties 
that  facts  are  not  correctly  impressed  on  their  minds,  or  are  not 
retained  in  their  memory,  or  that  they  do  not  understand  their 
responsibility  as  witnesses ;  and  if  such  reasons  for  the  exclusion 
of  witnesses  do  not  exist  they  should  be  permitted  to  testify.1 
The  mere  fact,  therefore,  that  a  witness  was  a  lunatic  is  not 
enough  to  excuse  him  from  giving  evidence  unless  at  the  time  of 
the  examination  he  is  so  far  under  the  influence  of  his  malady  as 
to  be  deprived  of  that  share  of  understanding  which  is  necessary 
to  enable  him  to  retain  in  memory  the  events  of  which  he  has 
been  a  witness,  and  as  not  to  have  a  knowledge  of  right  and 
wrong.2  A  person  is  competent  as  a  witness  where  at  the  time 
he  was  offered  to  be  sworn  he  possessed  such  understanding  as 
enabled  him  to  retain  in  memory  the  events  of  which  he  had  been 
a  witness,3  and  to  appreciate  the  sanctity  and  binding  force  of  the 
obligation  of  an  oath.4     But  he  is  not  competent  if  he  is  unable 

1  Worthington  v.  Mencer,  96  Ala.  310,  17  L.  R.  A.  407. 

2  Coleman  v.  Coin.  25  Gratt.  865,  18  Am.  Rep.  711. 

3  Walker  v.  State,  97  Ala.  85;  Clements  v.  McGinn  (Cal.)  33  Pac.  920; 
Tucker  v.  Skaw,  158  111.  326;  Cannady  v.  Lynch,  27  Mirm.  435;  Com.  v. 
Reynolds,  cited  in  10  Allen,  64;  Coleman  v.  Com.  25  Gratt.  865,  18  Am. 
Rep.  711;  Hiett  v.  Shull,  36  W.  Va.  563;  District  of  Columbia  v.  Armes, 
107  U.  S.  519,  27  L.  ed.  618;  Reg.  v.  Hill,  2  Den.  C.  C.  254,  5  Cox,  C.  C. 
259,  5  Eng.  L.  k  Eq.  547;  Fennell  v.  Tait,  1  Cromp.  M.  &  R.  584;  Spittle 
v.  Walton,  L.  R.  11  Eq.  420.     And  see  State  v.  Brown  (Del.)  36  Atl.  458. 

4  Walker  v.  State,  97  Ala.  85;  Clements  v.  McGinn  (Cal.)  33  Pac.  920; 
Holcomb  v.  Holcomb,  28  Conn.  177;  Com.  v.  Reynolds,  cited  in  10  Allen, 
64;  Cannady  v.  Lynch,  27  Minn.  435;  Coleman  v.  Com.  25  Gratt.  865,  18 
Am.  Rep.  711;  Hiett  v.  Skull,  36  W.  Va.  563;  District  of  Columbia  v. 
Armes,  107  U.  S.  519,  27  L.  ed.  618;  Reg.  v.  Hill,  2  Den.  C.  C.  254,  5  Cos,. 
C.  C.  259,  5  Eng.  L.  &  Eq.  547. 

607 


60S 


MEDICAL    JUEISPKUDENCE    OF    INSANITY. 


to  understand  such  obligation  whatever  may  have  been  the  char- 
acter of  his  incapacity,1  though,  if  he  understands  that  perjury  is 
punishable  by  law.  it  is  sufficient  though  he  has  no  conception  of 
the  religious  obligation  of  an  oath.2  Thus,  it  is  no  objection 
either  to  the  competency  or  credibility  of  a  witness  that  he  is 
subject  to  fits  of  derangement  if  at  the  time  he  is  offered  it  ap- 
pears that  he  is  sane,3  and  an  allegation  by  a  plaintiff  in  his  com- 
plaint that  he  was  at  one  time  insane  does  not  render  him  incom- 
petent to  testify  as  a  witness  in  an  action,4  though  an  insane 
person  is  not  as  a  general  rule  liable  to  compulsory  examination 
as  a  witness  by  the  adverse  party  before  trial.5  The  modern 
doctrine  is  that  the  testimony  of  a  witness  who  is  insane  or  labor- 
ing under  a  delusion  is  to  be  received  with  proper  caution  and 
considered  in  connection  with  his  incapacity,  rather  than  to  be 
rejected  or  struck  out.6 

The  sanity  and  competency  of  a  witness  are  presumed,7  and 
where  his  mental  capacity  is  questioned  the  burden  of  showing 
unsoundness  of  mind  which  will  disqualify  him  rests  with  the 
person  claiming  it,s  though  where  general  insanity  is  established 
it  is  presumed  to  continue,  and  the  party  offering  the  witness 
must  show  restoration;9  and  he  may  support  his  objection  either 
by  an  examination  of  the  witness10  or  by  the  testimony  of  other 
witnesses.11    The  question  whether  the  person  who  is  offered  as  a 

1  Livingston  v.  Kiersted,  10  Johns.  362;  Armstrong  v.  Timmons,  3  Harr. 
(Del.)  343;  State  v.  Meyers,  46  Neb.  152.  And  see  Fuller  v.  Fuller,  17CaL 
605;  Kllburn  v.  Mullen,  22  Iowa,  498;  Phebe  v.  Prince,  Walk.  (Miss.)  131; 
Hartford  v.  Palmer,  16  Johns.  143;  Gebhart  v.  Shindle,  15  Serg.  &E.  235. 

2  Snyder  v.  Nations,  5  Blackf.  295. 

3  Campbell  v.  State,  23  Ala.  44;  Evans  v.  Hettich,  20  U.  S.  7  Wheat.  453, 
5  L.  ed.  496;  State  v.  Kelley,  57  X.  H.  549. 

4  Cannady  v.  Lynch,  27  Minn.  433.  And  see  Holcomb  v.  Holcomb,  28 
Conn.  177. 

'•>  Mason  v.  Libbey,  2  Abb.  X.  C.  137. 

6  People  v.  Harper,  1  Edni.  Sel.  Cas.  180;  McCutehen  v.  Pigue,  4  Heisk. 
565;  Eeg.  v.  Hill,  2  Den.  C.  C.  254,  5  Cox,  C.  C.  259,  5  Eng.  L.  &  Eq.  547. 

'  See  State  v.  De  Wolf,  8  Conn.  93,  20  Am.  Dec.  90;  Gainesville  v.  Cald- 
well, 81  Ga.  76;  Eobinson  v.  Dana,  16  Yt.  474. 

8  Harrod  v.  Harrod,  1  Kay  &  J.  9;  State  v.  HoUoway,  8  Blackf.  45. 

9  Armstrong  v.  Timmons,  3  Harr.  (Del.)  342. 

10  Eeg.  v.  Hill,  5  Cox,  C.  C.  259,  5  Eng.  L.  &  Eq.  547. 

11  Livingston  v.  Kiersted,  10  Johns.  362;  District  of  Columbia  v.  Aruies, 
107  U.  S.  519,  27  L.  ed.  618.     But  see  Bell  v.  Einner,  16  Ohio  St.  45. 


WITNESSES    AND   JURORS.  609 

witness  is  insane  at  the  time  goes  to  the  competency  of  the  wit- 
nesses, and  is  a  preliminary  one  to  be  decided  by  the  court,1  and 
it  is  for  the  judge  to  satisfy  himself  whether  the  witness  under- 
stands the  nature  of  the  oath  and  is  capable  of  relating  what  he 
has  seen,2  and  his  determination  will  not  be  disturbed  on  appeal 
where  no  abuse  of  discretion  appears  ;3  and  the  court  on  appeal 
will  presume  that  the  judge  was  not  influenced  by  such  evidence 
as  he  ought  not  to  have  considered."  But  the  decision  on  a  pre- 
liminary examination  is  not  conclusive  in  subsequent  stages  of 
the  trial,  and  the  court  may  stop  the  examination  when  satisfied 
of  the  incapacity,  and  direct  the  jury  to  disregard  the  evidence.5 
It  is  not  the  duty  of  the  trial  court  to  examine  a  witness  as  to  men- 
tal soundness,  however,  merely  because  one  of  the  parties  alleges 
it,  unless  it  sees  some  indication  of  unfitness  to  testify.6  And 
whether  a  witness  is  incompetent  because  of  unsoundness  of  mind 
has  been  held  to  be  a  fact  to  be  proved  by  the  evidence  of  others 
and  not  by  the  examination  of  the  witness  alone,  and  that  a  re- 
fusal to  permit  a  preliminary  examination  is  not  error.7  Such 
unsoundness  is  to  be  proved  in  the  same  mode  as  insanity  in  any 
other  case,  and  evidence  of  previous  and  subsequent  insanity  is 
admissible;8  but  a  record  of  justices  finding  a  person  to  be  insane 
and  a  proper  person  to  be  admitted  to  the  insane  hospital  for 
curable  insane  is  not  admissible  nine  years  after  to  prove  that  the 
same  person  was  then  insane.9  So,  that  a  material  witness  in  a 
criminal  prosecution  had  received  a  head  injury  during  the  war 
is  admissible  in  evidence  for  the  purpose  of  showing  his  mental 
condition  as  an  excuse  for  failure  to  call  him  to  testify.10    But  an 

1  Clements  v.  McGinn  (Cal.)  33  Pac.  920;  Holcomb  v.  Holcomb,  28  Conn. 
177;  Dickson  v.  Waldron,  135  Ind.  507,  24  L.  K.  A.  483;  Carpenter  v. 
Dame,  10  Ind.  125;  District  of  Columbia  v.  Armes,  107  U.  S.  519,  27  L. 
ed.  618.     And  see  Kendall  v.  May,  10  Allen,  59. 

2  Com.  v.  Reynolds,  cited  in  10  Allen,  64;  People,  Norton,  v.  New  York 
Hospital,  3  Abb.  N.  C.  229. 

s  Dickson  v.  Waldron,  135  Ind.  507,  24  L.  R.  A.  483. 
•■  Campbell  v.  State,  23  Ala.  44. 

5  Queen  v.  Whitehead,  L.  R.  1  C.  C.  33. 

6  Cannady  v.  Lynch,  27  Minn.  435. 
1  Robinson  v.  Dana,  16  Vt.  474. 

8  Holcomb  v.  Holcomb,  28  Conn.  177. 
»  Breedlove  v.  Bundy,  96  Ind.  319. 
'"Hoard  v.  State,  15  Lea,  318. 
39 


610  MEDICAL   JURISPRUDENCE    OF    INSANITY. 

inquiry  of  a  witness  in  a  criminal  prosecution  for  the  purpose  of 
showing  his  superstitious  notion  with  respect  to  power  derived 
from  eating  certain  roots  is  too  remote  from  the  subject  to  be 
allowed,  as  it  need  not  necessarily  hinder  him  from  being  a  good 
observer  and  narrator  of  facts.1 

Xor  is  proof  that  a  witness  had  convulsive  fits  evidence  from 
which  it  can  be  inferred  that  he  had  not  sufficient  mind  to  be  a 
witness.2  But  the  mental  deficiencies  of  an  adult  which  would 
exempt  him  from  accountability  for  his  own  conduct  proximately 
contributing  to  his  personal  injury  would  also  render  him  an  in- 
competent witness  of  the  occurrences  in  which  the  injury  was 
received.3  So,  one  who  has  been  adjudged  insane  and  is  under 
guardianship  is  not  a  competent  witness  while  his  condition 
remains  unchanged.4  An  inquisition  of  lunacy  against  a  witness 
is  prima  facie  evidence  of  his  incompetency  to  testify,  though  his 
testimony  is  offered  against  one  who  was  not  a  party  to  the  pro- 
ceedings in  lunacy  ; s  but  it  is  not  conclusive.6  And  a  commis- 
sion may  issue  to  take  the  testimony  of  a  person  committed  to  a 
lunatic  asylum  in  another  state,  though  the  return  must  be  sub- 
mitted to  the  presiding  justice  upon  the  trial,  who  must  institute 
an  investigation  as  to  the  competency  of  the  witness.7  The 
objection  of  incompetency  cannot  be  decided  by  the  officer  taking 
the  deposition.6  And  when  a  deposition  of  a  witness  alleged  to 
be  incompetent  is  offered  in  evidence  it  is  within  the  discretion 
of  the  court  to  refuse  to  permit  it  to  be  impeached  on  that  ground 
where  the  evidence  to  sustain  mental  capacity  would  have  to  be 
sought  in  another  state  and  it  could  not  be  produced  in  season 
for  use  in  the  trial  in  progress.9  And  a  deposition  previously 
made  may  be  admitted  in  evidence  where  the  witness  is  insane  at 

1  Allen  v.  State,  60  Ala.  19. 

5  James  v.  Stonebanks,  1  N.  J.  L.  227. 

3  Worthington  v.  Mencer,  96  Ala.  310,  17  L.  E.  A.  407. 

4  Hull  v.  Louth,  109  Lid.  315,  58  Am.  Kep.  405. 

5  Hoyt  v.  Adee,   3  Lans.   173.     And  see  Spittle  v.   Walton,    L.   E.   11 
Eq.  420. 

6  Kendall  v.  May,  10  Allen,  59;  Hoyt  v.  Adee,  3  Lans.  173. 

'  Handv.  Burrows,  23  Hun,  330;  Carpenter  v.  Dame,  10  Ind.  125. 
*  Carpenter  v.  Dame,  10  Ind.  125. 
9  Carpenter  v.  Dame,  10  Ind.  125. 


WITNESSES    AND   JUKORS.  611 

the  time  of  the  trial,  though  it  was  not  taken  de  bene  esse.1  But 
the  affidavit  of  a  person  suffering  from  a  mental  delusion,  made 
while  in  confinement  in  a  lunatic  asylum,  cannot  be  received 
unless  his  condition  was  first  ascertained  by  preliminary  inquiry 
properly  made  and  a  notice  placed  in  the  jurat  of  the  circum- 
stances under  which-  it  was  taken.2  Provisions  lhat  persons  of 
unsound  mind  cannot  be  witnesses,  however,  refer  to  a  mind 
that  is  unsound  in  fact  as  contradistinguished  from  those  which 
have  been  judicially  declared  insane ; 3  and  a  person  who  has 
been  insane  and  who  has  apparently  recovered  may  testify  to 
facts  occurring  during  the  period  of  insanity  where  they  are 
objectively  demonstratable  and  constitute  a  basis  from  which  to 
give  such  testimony.4  And  one  who  has  been  placed  under 
guardianship  but  subsequently  duly  adjudged  sane  and  released 
is  competent  to  testify,5  the  discharge  of  the  witness  from  an 
asylum  being  prima  facie  evidence  of  restoration,  or  that  he  was 
improperly  committed.6  And  a  lunatic  under  confinement  in  a 
lunatic  asylum  is  competent  where  he  is  aware  of  the  nature  and 
sanctity  of  an  oath,  and  the  trial  judge  considers  him  competent 
in  point  of  understanding ; 7  and  he  might  be  brought  into  court 
to  testify  upon  satisfactory  proof  that  he  is  not  dangerous  and 
that  he  is  in  a  fit  state  to  be  brought  in.8  But  the  probative 
force  of  personal  and  self-regarding  incidents  occurring  during  a 
period  of  insanity,  and  testified  to  by  its  subject  either  while  still 
insane  or  when  recovered,  rests  solely  upon  corroborating  circum- 
stances.9 

The  question  whether  a  witness  sane  when  called  upon  to 
testify  was  insane    at  the  time  of    the    transaction    concerning 

1  Reg.  v.  Marshall,  Car.  &  M.  147.  And  see  Jones  v.  Jones,  1  Cox,  Ch. 
Cas.  184;  Murley  v.  Ternpleman,  cited  in  Shelf ord,  Lunatics,  495. 

2  Spittle  v.  Walton,  L.  R.  11  Eq.  426.  And  see  Re  Christie,  5  Paige, 
242;  Re  Cross,  2  Ch.  Sent.  283. 

3  Clements  v.  McGinn  (Cal.)  33  Pac.  920. 

4  People,  Norton,  v.  New  York  Hospital,  3  Abb.  N.  C.  229. 
6  Sarbach  v.  Jones,  20  Kan.  499. 

6  Clements  v.  McGinn  (Cal.)  33  Pac.  920. 

1  Reg.  v.  Hill,  2  Den.  C.  C.  258;  Tucker  v.  Shaw,  158  111.  326.  And  see 
Kendall  v.  May,  10  AUen,  59;  State  v.  Brown  (Del.)  36  Atl.  453;  Cannady 
v.  Lynch,  27  Minn.  435. 

8  Fennell  v.  Tate,  1  Cromp.  M.  &  R.  584. 

9  People,  Norton,  v.  New  York  Hospital,  3  Abb.  N.  C.  223. 


612  MEDICAL    JURISPRUDENCE    OF    INSANITY. 

which  he  testifies,  however,  goes  to  the  credibility  and  not  to  the 
competency  of  the  witness  and  may  be  properly  considered  by 
the  jury,  and  it  is  a  question  concerning  which  evidence  may  be 
adduced  by  the  opposite  party ; '  though  in  case  of  subsequent 
intervening  insanity  of  a  temporary  nature  the  court  will  direct 
an  adjournment  in  a  proper  case  to  await  a  recovery.2  And  the 
existence  of  delusions  in  the  mind  of  a  witness  at  the  time  of  the 
trial  goes  to  his  credit  and  not  to  his  competency,  the  question  of 
credibility  being  one  for  the  jury,3  though  a-  witness  who  is 
proved  to  have  been  afflicted  with  general  insanity  will  not  be 
permitted  to  testify  where  there  are  instances  of  strong  evidence 
of  delusion  existing  down  to  a  recent  period.4  And  in  weighing 
the  testimony  of  a  person  who  was  of  unsound  mind  at  the  time 
of  the  occurrence  of  the  facts  in  question,  a  distinction  is  recog- 
nized by  law  between  knowledge  of  a  fact  and  belief  of  a  fact, 
and  between  an  event  which  is  objective  and  demon stratable  and 
an  incident  which  may  be  merely  personal  and  subjective,  and  is 
of  especial  importance.5  The  rule  that  insanity  destroys  the 
capacity  of  a  witness,  and  that  the  question  of  competency  must 
be  determined  when  the  witness  is  called  and  before  he  is  sworn, 
however,  is  relaxed  where  the  incompetency  first  appears  from 
the  testimony  of  a  witness  himself,  or  where  the  fact  is  to  be 
shown  aliunde.6  And  while  the  evidence  adduced  to  the  court 
to  show  insanity  of  a  witness  cannot  be  submitted  to  the  jury  to 
affect  his  credibility  after  the  court  decides  that  he  is  sane,7  the 
general  rule  would  seem  to  be  that  where  a  witness  is  not  so 
deficient  as  to  require  his  exclusion  by  the  court  it  is  for  the  jury 
to  determine  from  his  appearance  and  manner  and  from  the  evi- 
dence on  the  subject  whether  he  is  so  mentally  incapable  as  to 
render  his  testimony  unworthy  of  acceptance,8  it  being  a  question 
for  the  jury  to  decide  what  amount  of  credit  shall  be  given  his 

1  Holcomb  v.  Holconib,  28  Conn.  177.     And  see  Gainesville  v.  Caldwell, 
81  Ga.  76. 

2  Coleman  v.  Com.  25  Gratt.  865,  18  Am.  Rep.  711. 

3  Walker  v.  State,  97  Ala.  85;  Sarbach  v.  Jones,  20  Kan.  499. 

4  Armstrong  v.  Timmons,  3  Harr.  (Del. )  313. 

5  People,  Xorton,  v.  New  York  Hospital,  3  Abb.  N.  C.  229. 

6  Pease  v.  Burrowes,  86  Me.  153. 
'  Campbell  v.  Sate,  23  Ala.  41. 

*  Worthington  v.  Mencer,  96  Ala.  310,  17  L.  E.  A.  107;  Gainesville  v. 
CeldweU,  81  Ga.  76. 


WITNESSES    AMD    JUKOKS. 


613 


testimony.1  And  the  testimony  of  a  witness  who  declares  him- 
self unable  to  answer  questions  on  the  ground  that  his  memory 
fails  at  times  because  of  mental  injury  resulting  from  sunstroke 
will  not  be  stricken  out  but  submitted  to  the  jury.2  So,  the 
force  of  the  testimony  of  a  person  concerning  a  personal  incident 
during  a  period  of  insanity  with  regard  to  himself  rests  wholly  upon 
the  corroborating  circumstances,  but  he  may  testify  to  such  facts 
provided  they  are  objectively  demonstratable  and  constitute  a 
basis  for  his  testimony.3  And  evidence  that  a  witness  who  had 
been  examined  had  been  of  imbecile  mind  and  memory  is  admis- 
sible to  affect  his  credibility,  though  it  was  not  offered  as  an 
objection  to  his  competency,4  though  mere  evidence  of  other 
witnesses  that  he  was  not  possessed  of  ordinary  intelligence  is 
inadmissible.5  So,  a  witness's  credibility  may  be  attacked  by 
evidence  that  his  mind  and  memory  had  become  impaired  by 
disease ; 6  or  by  evidence  as  to  his  stupid  conduct  at  a  coroner's 
inquest  previously  held ; 7  or  that  he  talked  irrationally  at  times- 
and  quarreled  with  women  without  cause  or  provocation^  And 
where  there  is  a  direct  conflict  in  the  testimony  of  two  witnesses, 
and  one  of  them  is  aged  and  has  had  an  attack  of  paralysis,  an 
expert  witness  may  be  asked  if  paralysis  did  not  have  a  tendency 
to  impair  the  mind  of  aged  persons.9  And  the  evidence  of  an 
old  man  with  but  little  knowledge  of  passing  events  and  feeble 
memory  of  past  transactions,  who  did  not  know  what  place 
he  was  in  while  on  the  stand,  or  where  he  stayed  the  night 
before,  or  came  from  that  morning,  and  could  not  remember 

1  Dickson  v.  Waldron,  135  Ind.  507,  24  L.  E.  A.  483;  Com.  v.  Reynolds, 
cited  in  10  Allen,  64;  Sarbach  v.  Jones,  20  Kan.  499;  Pease  v.  Burrowes, 
86  Me.  153;  District  of  Columbia  v.  Armes,  107  U.  S.  519,  27  L.  ed.  618; 
Eeg.  v.  Hill,  2  Den.  C.  C.  254. 

2  Lewis  v.  Eagle  Ins.  Co.  10  Gray,  508. 

3  People,  Norton,  v.  New  York  Hospital,  3  Abb.  N.  C.  229. 

4  Bivara  v.  Ghio,  3  E.  D.  Smith,  364.  And  see  Livingston  v.  Kiersted, 
10  Johns.  362. 

6  Bell  v.  Renner,  16  Ohio  St.  45. 

8  Alleman  v.  Stepp,  52  Iowa,   626;  Fairchild  v.  Bascomb,  35  Vt.  298. 
And  see  Carpenter  v.  Dame,  10  Ind.  125. 
-■  Territory  v.  Padilla  (N.  M.)  46  Pac.  346. 
f  Territory  v.  Padilla  (N.  M.)  46  Pac.  346. 
*  Lord  v.  Beard,  79  N.  C.  5. 


614: 


MEDICAL    JURISPRUDENCE    OF    INSANITY. 


having  changed  his  place  of  residence,  is  worthless  for  the  pur- 
pose of  showing  a  transaction  with  him  to  have  been  fraudulent.1 
Proof  that  a  witness  was  in  the  habit  of  using  laudanum  is  not 
sufficient  to  discredit  or  weaken  his  testimony  unless  it  is  also 
established  that  his  mind  was  thereby  impaired  or  that  he  was 
under  the  influence  of  an  opiate  at  the  time  the  testimony  was 
given.2  And  the  general  reputation  of  a  witness  as  to  sanity  is 
not  admissible  to  affect  his  credibility.3  ]STor  is  a  question  asked 
a  witness  in  a  criminal  case  as  to  what  he  said  on  a  preliminan' 
examination  about  the  same  matter  some  months  before,  to 
test  his  memory,  so  relevant  as  to  justify  a  reversal  because  of 
its  rejection,  where  his  answers  gave  the  impression  that  his 
memory  was  weak  and  that  he  was  easily  confused.4  And  the 
admission  of  evidence  that  a  witness  whose  competency  had  been 
attacked  had  told  the  same  story  before  is  not  a  ground  for  re- 
versal, where  it  tended  to  corroborate  her  evidence  and  help  the 
jury  to  a  right  estimation  of  her  intellectual  faculties.5  So,  a 
lunatic  called  as  a  witness  may  examine  and  cross-examine  wit- 
nesses called  on  either  side  to  determine  the  question  of  his  com- 
petency.6 And  a  witness  called  for  that  purpose  may  detail  facts 
and  express  opinions  as  to  the  competency  of  another  witness.' 
So,  the  cross-examination  of  a  witness,  the  incredibility  of  whose 
stories  raises  an  inference  that  he  imagines  fanciful  occurrences, 
is  competent  for  the  consideration  of  the  jury  on  the  question  of 
the  weight  to  be  given  to  her  direct  evidence  though  it  includes 
other  matters  which  would  be  inadmissible  if  considered  inde- 
pendently ;  but  it  is  not  evidence  of  the  facts  stated.'  And  the 
court  on  a  criminal  prosecution  should  upon  special  request  in- 
struct the  jury  on  the  question  of  the  sanity  or  insanity  of  a  wit- 
ness whose  testimony  is  attacked  on  that  ground  though  the 
testimony  as  to  his  insanity  is  very  slight.9 

1  Woodhull  v.  Whittle,  63  Mich.  575. 

*  Mc*DoweU  v.  Preston,  26  Ga.  528. 

s  Territory  v.  Padilla  (K  M.)  46  Pac.  346. 

4  Allen  v.  State,  60  Ala.  19. 

6  Bricker  v.  Lightner,  40  Pa.  199. 

6  Eeg.  v.  Hill,  2  Den.  C.  C.  254,  5  Cox,  C.  C.  259. 

1  Bricker  v.  Lightner,  40  Pa.  199. 

c  Pease  v.  Burrowes,  86  Me.  153. 

9  Territory  v.  PacliUa  (N.  M.)  46  Pac.  346. 


WITNESSES    AND'  JURORS.  .    615 

Secondary  evidence  of  what  a  witness  testified  to  on  a  prelim- 
inary investigation  before  a  committing  magistrate  may  be  given 
on  his  trial  where  his  testimony  on  such  examination  was  not  re- 
duced to  writing  and  he  has  since  become  insane.1  And  an 
instrument  may  be  proved  by  evidence  of  the  handwriting  of  the 
attesting  witness  where  he  has  become  insane  since  its  execu- 
tion.2 So,  the  deposition  or  testimony  of  a  witness  fairly  taken 
in  the  same  case  may  be  read  in  evidence  on  a  subsequent  trial 
where  he  has  become  insane  or  has  lost  his  memory  of  the  past,  the 
same  as  though  he  were  dead  or  out  of  the  jurisdiction.3  And  a  book 
of  accounts  kept  by  one  who  has  become  insane  proved  to  be  in  his 
handwriting  is  admissible  in  evidence  upon  being  verified  by  the 
oath  of  his  guardian  when  material  to  the  issue."  But  the  failure 
of  a  witness  to  recollect  particular  facts  will  not  justify  proving 
his  testimony  on  a  former  trial  where  such  forgetfulness  does  not 
amount  to  mental  imbecility.5  And  the  temporary  insanity  of  a 
party  whose  book  of  accounts  is  material  evidence  will  only  oper- 
ate as  a  postponement  until  sufficient  time  has  elapsed  for  his 
restoration,  though  it  will  be  admitted  in  evidence  where  restora- 
tion cannot  be  reasonably  expected.6  The  precise  words  of  a  wit- 
ness on  the  preliminary  investigation  before  a  committing  magis- 
trate who  has  since  become  insane,  and  whose  testimony  was  not 
reduced  to  writing,  need  not  be  given  in  giving  secondary  evi- 
dence thereof  upon  the  trial  for  the  same  offense,  the  substance 
of  the  testimony  being  all  that  is  necessary.7 

So,  under  statutes  disqualifying  insane  witnesses  the  disquali- 
fication applies  only  when  the  unsoundness  is  such  as  would  ren- 
der a  witness  incompetent  at  common  law,8  though  under  the 
Texas  statute  a  witness  is  rendered  absolutely  incompetent  when 
he  was  in  an  insane  condition  of  mind  either  at  the  time  when 
he  was  offered  as  a  witness  or  at  the  time  of  the  happening  of  the 
events  concerning  which  he  was  called  to  testify.9 

1  Mailer  v.  State,  67  Ala.  55,  42  Am.  Kep.  95. 

2  Currie  v.  Child,  3  Canipb.  283;  Burnett  v.  Taylor,  9  Yes.  Jr.  381, 

3  Emig  v.  Diem,  76  Pa.  359;  Gainesville  v.  Caldwell,  81  Ga.  76. 

4  Holbrook  v.  Gay,  6  Cush.  215. 

6  Stein  v.  Swensen,  46  Minn.  360. 
6  Holbrook  v.  Gay,  6  Cush.  215. 

•  Marler  v.  State,  67  Ala.  55,  42  Am.  Rep.  95. 

*  Cannady  v.  Lynch,  27  Minn.  435. 
8  Lopez  v.  State,  30  Tex.  App.  487. 


616  MEDICAL    JURISPRUDENCE    OF    INSANITY 

II.  Competency  of  jurors. 
Insanity  of  a  juror  is  a  good  cause  for  discharging  the  jury  in 
a  criminal  case  though  it  be  without  the  consent  of  the  prisoner 
or  his  counsel,  and  such  discharge  is  in  the  discretion  of  the  court 
and  cannot  form  the  subject  of  a  plea  in  bar  to  a  further  trial.1 
But  the  mental  defect  which  will  disqualify  a  juror  must  amount 
to  such  imbecility  or  such  gross  ignorance  as  practically  disquali- 
fies him  from  performing  his  duties  as  such,2  and  when  alleged 
as  a  ground  for  a  new  trial  it  must  be  proved  by  clear  and  full 
evidence.3  One  whose  mind  is  so  weak,  however,  that  he  cannot 
be  made  to  understand  the  obligations  of  an  oath  or  feel  religious 
scruples  is  not  competent  to  be  a  juror  ;4  and  the  fact  that  the 
Constitution  makes  colored  persons  qualified  jurors  has  no  effect 
upon  mental  defects  as  a  ground  for  disqualification,  the  same 
imbecility  or  defect  of  mental  capacity  disqualifying  a  colored 
person  as  a  white  person/  So,  the  existence  of  an  abstract  opin- 
ion on  the  part  of  an  individual  as  to  the  propriety  or  impropriety 
of  the  defense  of  insanity  in  a  criminal  prosecution  does  not  dis- 
qualify a  person  for  being  a  juror.6  Nor  does  a  mistaken  view 
of  the  law  applicable  to  the  defense  of  insanity,  or  an  adverse 
opinion  of  feigned  defenses  of  that  character  where  the  person 
discloses  a  willingness  to  yield  readily  to  the  law  as  it  exists,  and 
has  no  prejudice  against  a  genuine  defense.7  But  a  juror  in  a 
prosecution  for  a  crime  of  great  enormity  in  which  insanity  is 
alleged,  who  does  not  think  a  man  who  commits  such  an  offense 
can  be  of  sound  mind,  and  to  change  his  opinion  evidence  would 
be  required,  is  disqualified,  as  the  law  presumes  the  accused  to 
be  sane;°  and  that  a  juror  considered  the  fact  of  suicide  as  con- 
clusive evidence  of  insanity  is  a  good  cause  for  a  challenge  in  an 
action  upon  an  insurance  policy  where  the  assured  died  by  his 
own  hand.9 

i  United  States  v.  Haskell,  4  Wash.  C.  C.  402. 

2  Caldwell  v.  State,  41  Tex.  86. 

=*  State  v.  Scott,  1  Hawks  (N.  C.)  24. 

4  CaldweU  v.  State,  41  Tex.  86. 

5  CaldweU  v.  State,  41  Tex.  86. 

B  People  v.  Carpenter,  102  N.  T.  245,  38  Him,  490;  HaU  v.  Com.  (Pa.)  11 
Cent.  Rep.  183;  Butler  v.  State,  97  Ind.  378. 
1  Butler  v.  State,  97  Ind.  378. 

8  Com.  v.  Buccieri,  153  Pa.  535. 

9  Hiatt  v.  Mutual  L.  Ins.  Co.  2  Dill.  572,  note. 


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